trials@uspto.gov
`571-272-7822
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`CBM2015-00179, Paper No. 134
`December 6, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., TRADESTATION
`SECURITIES, INC., TRADESTATION TECHNOLOGIES,
`INC., and IBFX, INC.,
`Petitioners,
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2015-00179
`Patent 7,533,056 B2
`____________
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`Held: October 19, 2016
`____________
`
`
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Wednesday,
`October 19, 2016, commencing at 9:30 a.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`CBM2015-00179, Paper No. 134
`December 6, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., TRADESTATION
`SECURITIES, INC., TRADESTATION TECHNOLOGIES,
`INC., and IBFX, INC.,
`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2015-00179
`Patent 7,533,056 B2
`____________
`
`Held: October 19, 2016
`____________
`
`
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Wednesday,
`October 19, 2016, commencing at 9:30 a.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
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`Case CBM2015-00179
`Patent 7,533,056 B2
`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`ERIKA H. ARNER, ESQ.
`RACHEL L. EMSLEY, ESQ.
`CORY C. BELL, ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner
`Two Freedom Square
`11955 Freedom Drive
`Reston, Virginia 20190-5675
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`ROBERT SOKOHL, ESQ.
`RICHARD M. BEMBEN, ESQ.
`LORI A. GORDON, ESQ.
`KEVIN D. RODKEY, ESQ.
`Sterne Kessler Goldstein Fox
`1100 New York Avenue, N.W.
`Washington, DC 20005
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`and
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`ADAM J. KESSEL, ESQ.
`Fish & Richardson P.C.
`One Marina Park Drive
`Boston, Massachusetts 02210-1878
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`LEIF R. SIGMOND, JR., ESQ.
`MICHAEL D. GANNON, ESQ.
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606-6709
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`and
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`Case CBM2015-00179
`Patent 7,533,056 B2
`P R O C E E D I N G S
`- - - - -
`JUDGE PETRAVICK: You may be seated. We are
`going to take a minute to get Judge Plenzler in our hearing room
`and log into our computers.
`Good morning. We're here for a family of covered
`business method proceedings, it's going to be CBM2015-00161,
`2015-00172, 2015-00179, 2015-00181 and 2015-00182. This
`morning we're going to hear arguments in the 179 and the 172
`cases, according to the schedule we set forth. So, we'll start with
`the 179 case. Each party has 30 minutes to argue the
`presentation.
`So, could we hear from the Petitioners first, who is
`designated to argue?
`MR. SOKOHL: Robert Sokohl, Your Honor.
`JUDGE PETRAVICK: Okay. And with you at the
`
`table?
`
`MR. SOKOHL: We have at the table Richard Bemben
`from Sterne Kessler and Adam Kessel from Fish & Richardson,
`and also with me is Lori Gordon from Sterne Kessler.
`JUDGE PETRAVICK: Thank you.
`And for the Patent Owner?
`MR. SIGMOND: Your Honor, Leif Sigmond, backup
`counsel. I have with me Rachel Emsley, also backup counsel,
`and lead counsel, Erika Arner. We also have two representatives
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`Case CBM2015-00179
`Patent 7,533,056 B2
`from Trading Technologies here, Mr. Jay Knobloch and
`Mr. Adam Faier.
`JUDGE PETRAVICK: Thank you. All right.
`Mr. Sokohl, you will have 30 minutes, would you like to reserve
`any time for rebuttal?
`MR. SOKOHL: Yes, Your Honor, ten minutes. Your
`Honor, we also have Mr. William Cummings from Petitioner IBG
`with us.
`JUDGE PETRAVICK: I am going to set the clock for
`20 minutes.
`MR. SOKOHL: Thank you, Your Honor.
`The Supreme Court --
`JUDGE PETRAVICK: Just give me one minute.
`MR. SOKOHL: I'm sorry, Your Honor.
`JUDGE PETRAVICK: All right, begin when you're
`
`ready.
`
`MR. SOKOHL: Thank you, Your Honor.
`As this Board knows, the Supreme Court has now put
`forth a two-step test. I'm turning to slide 3. This two-step test, in
`the first part, the critical question is what's the focus of the
`methods? And the second part of the test, the question is, is there
`anything meaningful or is there an inventive concept?
`Now, as Petitioners put forth in its petition, the abstract
`idea or the focus of this claim is the abstract idea of graphing or
`displaying bids and offers to assist the trader in making an order.
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`Case CBM2015-00179
`Patent 7,533,056 B2
`I'm just going to put slide 4 up, which has the claim and that
`abstract idea.
`Now, claim 1 of the '056 patent simply recites receiving
`data to be graphed, displaying that received data, receiving user
`input for an order, including a default quantity, and a price, and
`then sending that trader's order to the exchange. But what's the
`focus of this claim? The focus of this claim, if you look at two
`places in the patent. First, field of the invention. The present
`invention relates to graphical user interfaces for electronic trading
`systems.
`The second place we look is in the preamble and the last
`step. This claim revolves around facilitating trading, and the last
`step is actually sending the trade to the electronic exchange.
`That's the focus of this claim. This is no different from Alice or
`Bilski, where we had intermediated settlement, or hedging.
`Now, Trading Technologies did not invent trading or
`electronic trading, and the details that appear in the claim are
`merely the standard market language that you would normally
`see, bids and offers. Or GUI elements. That cannot save this
`claim from abstractness.
`Now, the Patent Owner argues that the '056 patent, and
`particularly claim 1, helps visualize the data, but instead of
`solving technical problem, the '056 patent simply displays what a
`trader has done in his mind since the beginning of trading. And
`we can look at that in slide 6. And this, again, is right from the
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`Case CBM2015-00179
`Patent 7,533,056 B2
`specification, we can see that what claim 1 is really focused on is
`helping the trader visualize data.
`Additionally, Mr. Thomas, which is Patent Owner's
`expert, and I'm going to put up slide 7, also stated that the
`purpose was to help a trader do visually what they would
`typically have done in their mind. We would submit that the
`claim is abstract under step 1 of Alice.
`Now, moving to step 2, we need to ask, is there
`anything meaningful in the claim? And the answer is no. The
`claim does not recite an inventive concept. This is very typical
`and similar to what happened in Mayo. The question is, you can't
`just put the abstract idea in the claim and say apply it.
`Well, let's look at the claim again. I'm going to put
`back slide 4, since it has the claim. What we have here in the
`preamble is a recitation of computer, but we know from Alice that
`merely using a generic computer is insufficient. And here, it's
`actually only in the preamble.
`First step, receiving bid and offer information. That's
`just data gathering. Gathering data for the abstract idea. We also
`know that the concept of an electronic exchange, that's just a field
`of use. There is nothing that would take that statement and
`convert this claim into something statutory. But perhaps most
`importantly, this claim does not change the operation of the
`computer.
`This was the cornerstone of cases such as DDR and
`Bascom. If you're not changing the operation of a computer, what
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`Case CBM2015-00179
`Patent 7,533,056 B2
`we're having here is the typical use of a computer, which is the
`display of information.
`This claim is not rooted in technology, as we saw in
`DDR. The claims might provide a better visualization of the data,
`but that does not differentiate the claims from ordinary mental
`processes that could be performed using prior art trading GUIs.
`And I want to give a quote here, "mental processes such as these
`whose implicit exclusion from 101 undergirds the
`information-based category of abstract ideas. That's what we
`have here, information-based abstract ideas.
`Again, GUI might solve a business problem, how to
`quickly interpret marked demand in changing -- how market
`demand is changing to an item, but that's not a technological
`problem. These claims do not recite how to receive data, display
`it, other than along a price axis, enter a default quantity, select a
`location, or send an order. They do not require a new source of
`data, or a type of information, or a new technique for analyzing
`the data. Nor is there any type of inventive programming here.
`Merely providing data that is more comprehensible to the trader
`does not transform the abstract idea into a statutory process.
`This is not a technological advance. And the claims
`don't require any nonconventional computer, network, display, or
`user input device, individually or in combination. I think the
`recent case from Electric Power Group from the Central
`Circuit -- let me rephrase that. I think the recent case from the
`Federal Circuit, Electric Power Group, compels this conclusion.
`
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`Case CBM2015-00179
`Patent 7,533,056 B2
`There, the CAFC found that claims at issue failed 101 because
`"they did not go beyond requiring the collection, analysis and
`display of available information in a particular field stating those
`functions in general terms without limiting them to technical
`means for performing the functions that are arguably an advance
`over conventional computer and network technology."
`That's exactly the case here. The '056 patent clearly
`recites displaying market information without limiting them to
`any technical means. Similar to Electric Power, the claims here
`are defined as desirable information-based result that are not
`limited to inventive means of achieving that result. We therefore
`submit that this claim is invalid under 101.
`As to the dependent claims that Patent Owner raises,
`they are merely displaying data post-solution activity. There's
`nothing new there, there's nothing in the dependent claims that
`could possibly save this claim from abstractness. Does --
`JUDGE MEDLEY: I have a question.
`MR. SOKOHL: Yes, Your Honor?
`JUDGE MEDLEY: Do any of their proposed claim
`constructions, Patent Owner's proposed claim constructions, go to
`the heart of the 101 issue?
`MR. SOKOHL: I do not believe so, no. No, Your
`
`Honor.
`
`JUDGE MEDLEY: Not with respect to claims 5
`through 7?
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`Case CBM2015-00179
`Patent 7,533,056 B2
`MR. SOKOHL: No, Your Honor. The -- in regard to
`claims 5 through 7, they simply define how the data, the location
`of where the data is displayed, it is still merely the display of
`data. Well-known data that was -- that has been known
`post-processing of a trade, they're taking that information and just
`putting it on the screen. I do not believe their construction in any
`way alters this analysis.
`JUDGE MEDLEY: Okay, thank you.
`MR. SOKOHL: If there's no other questions on 101, I
`would like to now turn to Silverman. Silverman grounds. Now,
`the Patent Owner presents two arguments in regard to Silverman.
`It does not show a GUI, and it does not disclose a price axis.
`We're going to go through each one in turn.
`I would like to put up slide 19. Now, the Patent Owner
`argues that Silverman teaches logical models and not a GUI. But
`what the Patent Owner neglects to take into consideration is KSR.
`KSR tells us that it's not just what it -- a piece of art teaches, but
`also what it suggests to someone skilled in the art. And what's
`shown on slide 19 is, in fact, a representation of the data.
`Silverman illustrates a way to visualize market data. It
`would be obvious to implement this in a GUI. It wouldn't be
`difficult. A programmer could just take the exact arrangement of
`the data shown in Silverman and create a graphical user interface
`from it. The GUI elements are well-known, conventional GUI
`elements. There would be no issue converting that figure into a
`graphical user interface. And, importantly, Silverman expressly
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`Case CBM2015-00179
`Patent 7,533,056 B2
`states in describing figure 5 that the keystation book, which this
`is, on slide 19, is used to generate displays at the keystations, and
`"the keystation book at keystation 24A merely displays
`accumulated summaries of the bids or offers such as represented
`by block 71, 80, 86 and 92, in figure 5." And this can be found in
`column 15, lines 50 through 53.
`The only reasonable interpretation of these statements is
`that the keystation book is used to generate a graphical display
`such as shown in figure 5. This is also can be found in
`Petitioners' petition on page 61.
`We suggest that this figure, and the rest of the
`disclosure that we cite in our petition, amply suggests to a person
`of skill in the art how to generate the elements of claim 1.
`Now, PO's second argument has to do with a very
`narrow definition of price axis. Now, the Board construed price
`axis to be a reference line for plotting prices, including labeled,
`unlabeled, visible and invisible reference lines. We agree with
`this construction. It's the construction we proposed in our
`petition.
`The Patent Owner proposes an overly narrow
`clarification, not even a construction, a clarification, based on a
`few or even one exemplary figure in the patent. The reason for
`this clarification is transparent; they want to get around
`Silverman. They've come up with a construction that avoids this
`piece of art. This Board should resist modifying the construction
`to read in limitations from a single figure into the claim.
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`Case CBM2015-00179
`Patent 7,533,056 B2
`The bottom line is the price axis, which is a very broad
`term, under any standard, is particularly broad under the broadest
`reasonable construction. It is simply as the Board found in the
`institution decision.
`Now, going back to Silverman, in particular, I note that
`the Patent Owner provides no arguments as to Silverman if the
`Board does not accept its construction. If it accepts the Patent
`Owner's construction, I would still submit the petition supports a
`finding of obviousness. And in particular, on pages -- page 62 of
`our petition, we were very explicit and we said that the
`Petitioners also argue that the -- we also argue that the references
`of record and knowledge of a POSITA would suggest such an
`axis. In other words, adding additional indicators along the axis,
`even where there is no orders, would have been a design choice to
`aid in evaluating the scale of the graphed data. Again, petition
`62.
`
`If there are no questions on Silverman, I would like to
`move to TSE.
`JUDGE PLENZLER: Let me just ask you real quick
`question about the price axis that's -- what's I guess shown in
`Silverman that you consider to be a price axis. I mean, you
`would agree that there are no values associated with that line,
`correct?
`MR. SOKOHL: There are -- the line is relative to
`prices, but there is no -- it's not a -- it's not scaled in any particular
`fashion.
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`Case CBM2015-00179
`Patent 7,533,056 B2
`JUDGE PLENZLER: I mean, what's the difference
`between -- it seems to me like maybe it's just separating the bid
`side and the offer side, right? So, what would be the difference
`between a box drawn around the bid side and a box drawn around
`the offer side, or just a line that extends between the two like we
`have in Silverman?
`MR. SOKOHL: Yeah, it still extends and descends in
`price order. The bids are aligned from highest to lowest and the
`offers are aligned highest to lowest. So, it's still a price axis, but
`it is -- so, hopefully that answers your question, but it's still a
`price axis in that the line shown in Silverman does have some
`relationship to price, and the bids and offers have a relationship to
`price.
`
`JUDGE PLENZLER: Okay, thank you.
`MR. SOKOHL: Now, in regard to TSE, there are three
`issues. The first is whether or not TSE was publicly available;
`the second is whether or not Petitioners can antedate the test
`document; and third is the arguments by the Patent Owner as to
`whether or not TSE renders claim 1 obvious.
`As to the first, TSE is prior art. I would like to put up
`slide 11. Mr. Kawashima provided testimony as to the public
`availability of the TSE document. He has now been deposed
`twice, once in a prior litigation and once in this proceeding.
`Mr. Kawashima is the person who drafted the operation guide,
`the TSE Operation Guide, and he testified, as shown in slide 11,
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`Case CBM2015-00179
`Patent 7,533,056 B2
`that 200 participants in the Tokyo Stock Exchange received this
`document in August of 1998. This testimony still is unrebutted.
`Now, Patent Owner raises two issues in regard to TSE
`being publicly available. The first is that a POSITA would have
`to obtain this document, but that is not the law. As the Board
`properly pointed out in its institution decision, and as pointed out
`in Blue Calypso, the Federal Circuit case, to qualify as a printed
`publication, a reference "must have been sufficiently accessible to
`the public interested in the art." The 200 participants in the
`Tokyo Stock Exchange are people, public, interested in the art.
`And one of those companies mentioned by Mr. Kawashima was
`Goldman Sachs. He also mentioned Merrill Lynch. There is no
`requirement in the law that a POSITA obtain the document. And,
`in fact, from the case Constant v. AMD, there is no requirement
`that a particular member of the public receive the document.
`The second issue that Patent Owner raises is
`corroboration. Again, Patent Owner is wrong. There is
`absolutely no requirement that Mr. Kawashima's testimony be
`corroborated. The law is simple, if you're going to use sole
`testimony of a witness to invalidate a patent; for example, public
`use, for sale, that must be corroborated. There is no case law
`cited by the Patent Owner that suggests that you must corroborate
`the public availability -- the testimony of a witness to show public
`availability.
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`Patent 7,533,056 B2
`Finally, the TSE document itself is self-corroborating.
`That has a date, August 1998, and confirms what Mr. Kawashima
`testified to. We would submit that TSE is prior art.
`Looking at the clock, I will move on, if there are no
`questions on TSE.
`JUDGE MEDLEY: I do. Are you going to talk about
`the antedating next?
`MR. SOKOHL: Yes.
`JUDGE MEDLEY: Okay, I'll let you go on.
`MR. SOKOHL: That is exactly what's coming up next.
`We would submit that TSE cannot be antedated for three reasons:
`Number one, they have not -- Patent Owner has not shown
`conception; they have not shown diligence; and they have not
`shown actual reduction to practice. I would like to focus in on
`diligence, if I may.
`JUDGE MEDLEY: I have a question on that. What are
`the dates we're looking at? So, the law says it should be just prior
`to the TSE reference up until the reduction to practice.
`MR. SOKOHL: That is correct. And, so, for --
`JUDGE MEDLEY: What date are we looking at for
`TSE? You just say it's August 1998. I think we -- as fact finder,
`we would assume that's August 31st.
`MR. SOKOHL: We would agree with that, Your
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`Honor.
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`JUDGE MEDLEY: Okay.
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`MR. SOKOHL: Absolutely. It's August 31st until the
`alleged actual reduction to practice. And if we look at that -- let's
`see here. If the we look at slide 13, I believe. Not 13. Yes.
`Slide 13. We will see that the -- first of all, under diligence, the
`law is, and the Patent Owner has failed to show, that they must
`account for the entire period during which diligence is required.
`Starting on August 31st. The entire period.
`What they have is emails during a period of many
`months with a complete lack of evidence of what happened
`during the periods. For instance, between August 31st and
`September 21st, there is no evidence of diligence during that
`period. They have to come forward with some type of evidence
`during that period.
`The same can be said with September 21st to October
`8th, and October 8th to October 13th, and October 13th to
`October 20th. Any one of these gaps could be fatal to diligence
`showing, but collectively, collectively, they have utterly failed to
`show diligence under the prevailing case law.
`If there is no questions on that, I've got a minute 23, I'll
`move on.
`I would like to now just talk about quickly TSE. The
`TSE combinations, under 103, we submit that claims 1 through
`15 are obvious. Claim 1 is very straightforward. It includes
`receiving bid and offer information, and displaying two bid
`indicators and two offer indicators representing quantity along a
`price axis, receiving a default from a trader, and sending a trade
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`to an electronic exchange based on a selection by a trader of a
`price for an order. We're talking about four pieces of data along
`an axis and conventional graphing techniques.
`Now, the sole argument for claim 1 in regard to TSE put
`forth by Petitioners -- excuse me, by Patent Owner, is simply that
`it went against conventional wisdom. But that doesn't make any
`sense. The prior art is in front of us. We're looking at the Tokyo
`Stock Exchange operating manual and it clearly shows those
`elements. The only element it doesn't teach is a default, and we
`provide Togher in combination with TSE to show that.
`They use a strawman, figure 2 from a completely
`unrelated patent, compare their claims to figure 2, and say that
`someone of skill in the art would not have created TSE because
`of screen real estate. Well, that's just, frankly, a silly argument.
`As I said, there's only four data points and a price axis. Screen
`real estate is not an issue in claim 1. We would submit that's
`insufficient.
`I see I am almost out of time, so I would just say that in
`regard to the two independent claims, I believe it's 5 and 6, that
`Patent Owner has raised, we believe that TSE fully supports the
`103 grounds, that TSE clearly shows a working order, aligned
`with price axis, as shown in -- as recited in claim 5, and it shows
`it in two different ways. It shows it as an aggregate, but it also
`shows in TSE, and I'll just put up quickly slide 16, you can see
`right here on the left-hand side, where it shows the quantity -- the
`number of orders and the quantity, there's a 1 and a 5. When
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`Case CBM2015-00179
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`there's a 1, that's one order, there is a trader who can see his order
`in the marketplace. Claim 5 is merely a method claim, and it only
`requires a single trader to see his order at any one time.
`If there are no further questions, I believe I'm out of
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`time.
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`JUDGE PETRAVICK: Okay, you have about a minute
`left, we will add that to your rebuttal time.
`MR. SOKOHL: Thank you, Your Honor.
`JUDGE PETRAVICK: Unless my colleagues have a
`question.
`(No response.)
`JUDGE PETRAVICK: You can begin when you're
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`ready.
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`MR. SIGMOND: Good morning, Your Honors. Again,
`Leif Sigmond, backup counsel for Trading Technologies.
`I want to make a few preliminary statements. One is
`that we plan to use our time addressing the 103 arguments. If you
`have questions about the 101 arguments, lead counsel Erika
`Arner is here and can answer those questions, but we're going to
`use our very limited time to address the 103 arguments.
`I also understand the Board has ruled that we may not
`discuss case law that's not cited in the parties' briefs, and pursuant
`to the Board's order of yesterday afternoon, I will limit my
`remarks to cases in the briefs, but because the Board will have to
`decide these proceedings based on accurate statements of the law,
`I am prepared to discuss other cases with the Board today.
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`Otherwise, we request supplemental briefing to respond to
`cases -- sorry, to case law addressed in Petitioners' reply.
`And just by way of example, in the reply brief on the
`swear behind issue, the Petitioners cite In Re: Mulder and Burns,
`alleging that there has been a gap in the inventor's diligence. We
`would like to respond with case law that further explains what
`type of evidence suffices to show reasonable diligence,
`specifically Monsanto v. Mycogen, 261 F.3d, 1356 --
`JUDGE PETRAVICK: Excuse me, I am going to
`address your point right now.
`MR. SIGMOND: Okay.
`JUDGE PETRAVICK: What we discussed yesterday is
`what could be in your demonstratives, and what our order
`regarding your demonstratives were and your compliance with
`the demonstratives. Here at oral argument, new arguments and
`new briefing are prohibited, according to our rules. So, if you
`would like to discuss new case law, and apply it to your facts in
`this case, that is probably outside the bounds of our rules. If you
`want to say that there's no case law that exists, that's probably
`within the bounds of those rules.
`If you would like to make -- if at this point in time, after
`all substantive briefing is done, you will have to ask for
`supplemental briefing. If you want to provide a supplemental
`notice of authority, you can ask for authorization to do that. The
`way to do that properly is to send us an email to the trials box.
`That's how these proceedings work. Those are our procedures.
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`We specified to how that worked in the order in this proceeding
`already when we addressed unauthorized motions.
`So, if you would like to do any of those things,
`according to our rules, and our procedures, you must follow our
`rules and our procedures.
`MR. SIGMOND: I'm sorry, I beg the Court's
`indulgence. Does that mean I should not discuss any new case
`law today that's not in the briefs, or -- I mean --
`JUDGE PETRAVICK: What I am saying is the line
`between adding new briefing to these -- in these oral arguments
`and maybe stating a new case is somewhere in between.
`MR. SIGMOND: Somewhere in between.
`JUDGE PETRAVICK: And, so, I -- you should not
`provide new briefing in these oral arguments. That is prohibited
`at this time. But you can, if you would like to tell us about a new
`case that came up, that's fine, but if you are going to provide new
`arguments regarding the facts of this specific case, then you've
`probably crossed the line into new briefing.
`MR. SIGMOND: Okay, Your Honor, I'll do my best,
`but the --
`JUDGE PETRAVICK: That's all we can ask from you.
`MR. SIGMOND: The one example I cited was that
`Monsanto case.
`JUDGE MEDLEY: And was that case prior to your
`briefing, your Patent Owner response?
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`MR. SIGMOND: No, but it's -- we're defending our
`argument that was already made in our POR. You know, in that
`case, we are arguing the swear behind and then they came up with
`case law in their reply, and so it's just to kind of clarify the law,
`and that's the example.
`JUDGE PETRAVICK: Did you file -- did you ask for a
`surreply?
`MR. SIGMOND: We have not.
`JUDGE PETRAVICK: Okay, so you did not ask to file
`a surreply?
`MR. SIGMOND: Not that I know of, Your Honor.
`You know, I'm -- actually, the answer is I don't know, but I don't
`think so.
`JUDGE PETRAVICK: Okay.
`MR. SIGMOND: Okay? Can I -- I know I'm already
`eating into my time, is it okay to proceed?
`JUDGE PETRAVICK: You can proceed, yes.
`MR. SIGMOND: Okay, thanks.
`First I want to talk about the TSE, and our position that
`it is not prior art. What is it? First we should understand what it
`is. It's a manual for users of the TSE. TSE is Tokyo Stock
`Exchange, and it was meant for the people at the Tokyo Stock
`Exchange who trade, and it's a Japanese manual. We have had all
`kinds of issues with the translation. The one thing that's very
`clear, and Mr. Kawashima testified about it, Exhibit 2173, page
`43 to 44, it was not made for a POSA. He did not -- he is the guy
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`who wrote it and put it together and he did not make it for a
`POSA.
`
`And it was made for a system that's locked down and
`not modifiable. So, you get this terminal and you trade on it, but
`you don't kind of open it up and -- sorry -- and change the
`software and do all kinds of things to it. So, this is a manual for
`those terminals. And the copy we see came out of the TSE files.
`They didn't go out and get it from, you know, one of these
`participants. It came out of the TSE files. And the fact that it has
`a date stamp on it, I mean, I guess I suppose -- sorry, I'm fighting
`a cold here, so I need water.
`You know, the fact that it has a date on it, I think every
`document that's secret or not secret, everywhere in every
`company, has a date on it. I don't think the fact that it has a date
`on it has anything to do with it being published or not.
`So, we look to Blue Calypso for the proper test, and I
`think Mr. Sokohl mentioned it, but you've got to look at the test
`and really read it for what it is. It's for persons that are interested
`and ordinarily skilled in the subject matter or art exercising
`reasonable diligence could locate the reference. That's our slide
`2. This is a quote right from the case.
`In other words, you can't just take it and leave it on a
`street corner or put it somewhere or put it in a file where no one
`could see it. You basically need a path for a POSA to be able to
`find it -- to be able to find it. You have to ask, hey, back then,
`could a POSA have found it? And I'll get to just why I think that
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`would have been an impossibility with this particular reference --
`this particular manual.
`Just as an example, in the library cases like the Cronyn
`case, indexing by name only for -- was not enough, they had to
`index by subject matter. The test isn't fueled by speculation. I
`want to make one thing very clear. It's Petitioners' burden to
`prove evidence that shows that the test is met. It's not our burden
`to prove that every hypothetical they pose didn't happen. It's their
`burden to prove that there was a way for a POSA to find this.
`Asking TT to disprove everything is improper burden shifting.
`Let's go to slide 3, Rachel.
`What's Petitioners' argument? This is from their
`petition, pages 21 and 22, and they describe the reference, and
`then they say this, I think it's important, because Mr. Sokohl said
`almost the same thing, or maybe the same thing, but they say it's
`prior art under Section 102(a) because it was published in August
`of 1998 by giving two copies to each o
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