Paper No.
`Filed: December 15, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_________________
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`Filed: December 15, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_________________
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`Petitioner Exhibits:
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`• 1010 (Transcript of the Deposition of Christopher Thomas, April 25,
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`2015, from CBM2014-00131; -00133; -00135; and -00137);
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`• 1011 (Redacted Second Corrected Expert Report of Christopher
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`Thomas, Trading Technologies International, Inc. v. CQG, Inc., Case
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`No. 1:05-CV-04811 (N.D. Ill. Dec. 12, 2013) (“Thomas Report”)
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`• 1012 (Expert Declaration of Kendyl A. Roman);
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`• 1015 (“Futures/Option Purchasing System Trading Terminal
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`Operation Guidelines,” Tokyo Stock Exchange);
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`• 1016 (Certified Translation of “System for Buying and Selling
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`Futures and Options Transaction Terminal Operational Guidelines”);
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`• 1017 (Certificate of Translation for “System for Buying and Selling
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`Futures and Options Transaction Terminal Operational Guidelines”);
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`• 1018 (Deposition Transcript of Atsushi Kawashima, Trading Techs.
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`Int’l, Inc., v. eSPEED, Inc., Case No. 04-cv-5312, United States
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`District Court, Northern District of Illinois, Eastern Division, dated
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`November 21, 2005);
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`1
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`
`
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`• 1019 (U.S. Patent No. 5,619,631 to Schott);
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`• 1020 (U.S. Patent No. 5,646,992 to Subler et al.);
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`• 1022 (U.S. Patent No. 5,136,501 to Silverman et al.);
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`• 1023 (U.S. Patent No. 5,297,031 to Gutterman et al.);
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`• 1024 (WO 90/11571 to Belden);
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`• 1025 (Mark J. Powers, "Starting Out in Futures Trading," Sixth
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`Edition, 2001);
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`• 1026 (History of the American and NASDAQ Stock Exchanges);
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`• 1027 (Weiss, “After the Trade is Made”);
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`• 1029 (Cooper, “About Face: The Essentials of User Interface Design,”
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`First Edition, 1995);
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`• 1030 (Shneiderman, “Designing the User Interface: Strategies for
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`Effective Human-Computer Interaction,” Third Edition, 1998);
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`• 1033 (Arms, Jr., “Profits in Volume- Equivolume Charting,” 1971);
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`• 1035 (Inside Macintosh, Promotional Edition, Apple Computer, Inc.,
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`1985);
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`2
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`
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`• 1036 (Valerie Illingworth, and I. C. Pyle, Dictionary of Computing
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`(4th Ed, Oxford University Press, 1996));
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`• 1037 (U.S. Patent No. 1,760,287 to Schippers;
`
`• 1040 (Merriam-Webster’s Collegiate Dictionary, Tenth Edition,
`
`1998); and
`
`• 1042 (U.S. Patent No. 5,347,452 to Bay, Jr.).
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`3
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`OBJECTION TO PETITIONER EXHIBIT 1012
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`I.
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`Patent Owner objects to Exhibit 1012 because it contains unreliable
`
`testimony under FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
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`(1993). In particular, Mr. Román’s declaration includes numerous purported
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`“expert” opinions on matters about which Mr. Román is not qualified to offer such
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`“expert” testimony. Mr. Román has insufficient knowledge, skill, experience,
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`training, and education regarding trading and/or trading GUI design. Yet Mr.
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`Román repeatedly opines about the understanding of a person of ordinary skill in
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`the art in the relevant time period with respect to such subjects. See, e.g., ¶¶ 55,
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`75, 78, 81, 85-88, 93, 96, 100, 101, 107, 109-112, 115-117, 130, 137, 141, 142,
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`144, 149, 151, 153, 154, and 165.
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`II.
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`OBJECTION TO PETITIONER EXHIBITS 1010-1011, 1015-1019,
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`1020, 1022, 1023-1027, 1029, 1030, 1033, 1035-1037, 1040, 1042
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`Patent Owner objects to Exhibits 1010-1011, 1015-1019, 1020, 1022, 1023-
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`1027, 1029, 1030, 1033, 1035-1037, 1040, and 1042 to the extent that Petitioner
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`relies on their contents for the truth of the matters asserted therein. Exhibits 1010-
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`1011, 1015-1019, 1022, 1025-1027, 1029, 1030, 1033, 1035-1037, 1040, and 1042
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`are inadmissible hearsay under FRE 801 and 802, and no exception applies.
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`III.
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`OBJECTION TO PETITIONER EXHIBITS 1015, 1016, and 1017
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`4
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`
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`Petitioner has submitted no evidence to authenticate Exhibit 1015, and
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`deficient evidence for Exhibit 1016 as set forth below, making both inadmissible
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`under FRE 901.
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`Patent Owner also objects to Exhibit 1015, 1016, and 1017 under FRE 602.
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`Petitioner fails to provide a credible translation of TSE and fail to conform with the
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`Board’s rules for submitting translations of foreign language documents. In
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`particular, 37 C.F.R. § 42.63(b) requires that “[w]hen a party relies on a document
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`or is required to produce a document in a language other than English, a translation
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`of the document into English and an affidavit attesting to the accuracy of the
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`translation must be filed with the document.” The record lacks such an affidavit
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`under Rule 42.63(b) attesting to the accuracy because Mr. Cohen, on information
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`and belief, did not translate the Japanese language TSE into English, has not stated
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`that he reviewed or edited the English translation, thereby demonstrating his lack
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`of personal knowledge regarding the matter for which he is testifying. See FRE
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`602 (requiring personal knowledge to testify to a matter). Therefore, Exhibit 1016
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`is noncompliant with 37 C.F.R. § 42.63(b). This makes Exhibit 1015 and 1017
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`inadmissible under 37 C.F.R. § 42.61(a) (“Evidence that is not taken, sought, or
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`filed in accordance with this subpart is not admissible.”). Furthermore, Exhibit
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`1016 is an inherently subjective translation from Japanese to English and
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`prejudicial and misleading under FRE 403.
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`5
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`Patent Owner further objects to Exhibit 1015 under FRE 403 and FRE
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`1003. The copy of the Japanese language TSE document (Exhibit 1015) is illegible
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`in many places (e.g., pp. 54-63, 91-120, 137-143) and therefore cannot be used to
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`verify the accuracy of the translation.
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`Patent Owner further objects to Exhibit 1016 under FRE 403. Exhibit 1003
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`substitutes nearly verbatim Patent Owner’s own translation of the TSE’s Chapter 7
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`for the inaccurate translation previously provided by Petitioner’s counsel.
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`Compare Ex. 1016, 91-120 with CBM2016-00009, Ex. 2020, Appx. E. Despite
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`having copied Patent Owner’s translation into Exhibit 1016 on pages 7-25 and 7-
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`26, Petitioner omits two translator’s notes from Patent Owner’s original
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`translation. Exhibit 1016 is therefore incomplete, misleading, and inadmissible
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`under FRE 403.
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`IV.
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`OBJECTION TO PETITIONER EXHIBITS 1015-1020, 1022-1024,
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`1027, 1029, 1030, 1033, 1037, and 1042
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`Petitioner relies on Exhibits 1015-1020, 1022-1024, 1027, 1029, 1030, 1033,
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`1037 and 1042 as disclosing certain features of the claims of the ’416 patent.
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`However, Exhibits 1015-1020, 1022-1024, 1027, 1029, 1030, 1033, 1037, and
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`1042 are irrelevant to the §§ 101 and 112 grounds instituted by the Board, and are
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`6
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`therefore inadmissible under FRE 401 and 402 because they lack a tendency to
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`make any fact at issue in this proceeding more or less probable.
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`
`Respectfully submitted,
`
`By: /Rachel L. Emsley/
`Rachel L. Emsley, Backup Counsel
`Registration No. 63,558
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`
`
`Dated: December 15, 2016
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`7
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`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`
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`Owner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64 were served on
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`December 15, 2016, via email directed to counsel of record for the Petitioner at the
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`following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
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`Richard M. Bemben
`rbemben-PTAB@skgf.com
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`John C. Phillips
`PTABINBOUND@fr.com
`
`PTAB@skgf.com
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`
`Dated: December 15, 2016
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`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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