`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; and
`TRADESTATION SECURITIES, INC.
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`_____________
`
`CBM2016-00032
`Patent 7,212,999
`_____________
`
`
`PETITIONERS’ MOTION TO EXCLUDE
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`CBM2016-00032
`Patent 7,212,999
`
`I.
`
`Introduction ......................................................................................................... 1
`
`II. Argument ............................................................................................................. 1
`
`A. Exhibit 2030: eSpeed Jury Verdict Form ........................................................ 1
`
`B. Exhibits 2168 and 2192-2194: Mr. Gould-Bear’s Declaration and
`Attachments ............................................................................................................ 2
`
`C. Exhibits 2174 and 2183-2189: Dr. Olsen’s Declaration and Attachments ..... 3
`
`III. Conclusion ........................................................................................................... 4
`
`
`
`- i -
`
`
`
`CBM2016-00032
`Patent 7,212,999
`
`I.
`
`Introduction
`
`Petitioners move to exclude Patent Owner’s Exhibits 2030, 2168, 2174,
`
`2183-2189, and 2192-2194 because these documents are irrelevant or constitute
`
`hearsay to which no exception applies.
`
`II. Argument
`A. Exhibit 2030: eSpeed Jury Verdict Form
`The Board should exclude Exhibit 2030, which purports to be a jury verdict
`
`form associated with Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04-cv-
`
`05312. The eSpeed jury’s findings are not probative of any issue before the Board.
`
`Accordingly, this evidence is irrelevant and inadmissible. See FRE 401.
`
`Patent Owner offered Exhibit 2030 as evidence that TSE does not qualify as
`
`prior art. (Paper 12 at 10.) Petitioners timely objected to Exhibit 2030 for lack of
`
`relevance and hearsay. (Paper 20 at 2-3.)
`
`The fact that the eSpeed jury found that a third party defendant did not meet
`
`its burden of proving a patent obvious under the clear and convincing evidence
`
`standard is not relevant to whether Petitioners have met their burden of
`
`demonstrating the ’999 patent to be unpatentable under the preponderance of the
`
`evidence standard. Nor are these documents relevant to whether the ’999 patent
`
`claims eligible subject matter under 35 U.S.C. § 101. Accordingly, Exhibit 2030
`
`should be excluded as irrelevant. FRE 401.
`
`
`
`- 1 -
`
`
`
`CBM2016-00032
`Patent 7,212,999
`Exhibits 2168 and 2192-2194: Mr. Gould-Bear’s Declaration and
`Attachments
`
`B.
`
`The Board should exclude Exhibits 2168 and 2192-2194 as irrelevant and as
`
`hearsay. Exhibit 2168 is Mr. Gould-Bear’s Declaration from CBM2016-00051,
`
`which is a CBM of U.S. Patent No. 7,904,374. Exhibits 2192-2194 are attachments
`
`to Mr. Gould-Bear’s Declaration.
`
`Patent Owner relies on Exhibit 2168 to argue that graphical user interfaces
`
`are technology, that the ’999 claims are patent eligible, and that the ’999 patent’s
`
`computer readable medium claims do not cover signals. (Paper 24 at 19-20, 47,
`
`49.) Petitioners timely objected to Exhibits 2168 and 2192-2194 for lack of
`
`relevance and hearsay. (Paper 26 at 2-3.)
`
`Mr. Gould-Bear’s testimony about an unrelated patent from a different
`
`proceeding is not probative of any of the issues in this proceeding. It is irrelevant,
`
`confusing, and a waste of time. Thus, the Board should exclude this evidence
`
`under FREs 401-403.
`
`Additionally, Mr. Gould-Bear’s testimony is hearsay because it was not
`
`made while testifying for the current proceeding and is being offered for the truth
`
`of the matters asserted. FRE 801. His testimony is not excluded from the hearsay
`
`rule because it is not being used for a purpose permitted under FRE 801(d). And,
`
`Patent Owner has not shown that any specific exception under FRE 803 or the
`
`residual exception under FRE 807 applies here. Accordingly, the Board should
`
`
`
`- 2 -
`
`
`
`CBM2016-00032
`Patent 7,212,999
`exclude Mr. Gould-Bear’s Declaration and its attachments as hearsay.
`
`C. Exhibits 2174 and 2183-2189: Dr. Olsen’s Declaration and
`Attachments
`
`The Board should exclude Exhibits 2174 and 2183-2189 as irrelevant and as
`
`hearsay. Exhibit 2174 is Dr. Olsen’s Declaration from CBM2016-00051, which is
`
`a CBM of U.S. Patent No. 7,904,374. Exhibits 2183-2189 are attachments to Dr.
`
`Olsen’s Declaration.
`
`Patent Owner relies on Exhibit 2174 to argue that graphical user interfaces
`
`are technology and that the ’999 claims are patent eligible. (Paper 24 at 19-21, 47.)
`
`Petitioners timely objected to Exhibits 2174 and 2183-2189 for lack of relevance
`
`and hearsay. (Paper 26 at 2-3.)
`
`Dr. Olsen’s testimony about an unrelated patent from a different proceeding
`
`is not probative of any of the issues in this proceeding. It is irrelevant, confusing,
`
`and a waste of time. Thus, the Boards should exclude this evidence under FREs
`
`401-403.
`
`Additionally, Dr. Olsen’s testimony is hearsay because it was not made
`
`while testifying for the current proceeding and is being offered for the truth of the
`
`matters asserted. FRE 801. His testimony is not excluded from the hearsay rule
`
`because it is not being used for a purpose permitted under FRE 801(d). And, Patent
`
`Owner has not shown that any specific exception under FRE 803 or the residual
`
`exception under FRE 807 applies here. Accordingly, the Board should exclude Dr.
`
`
`
`- 3 -
`
`
`
`CBM2016-00032
`Patent 7,212,999
`
`Olsen’s Declaration and its attachments as hearsay.
`
`III. Conclusion
`For the reasons set forth above, the Board should exclude Patent Owner’s
`
`Exhibits 2030, 2168, 2174, 2183-2189, and 2192-2194.
`
`
`Date: March 29, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert E.Sokokl/
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`- 4 -
`
`
`
`CBM2016-00032
`Patent 7,212,999
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`MOTION TO EXCLUDE was served electronically via e–mail on March 29,
`
`2017, in its entirety on Attorneys for Patent Owner:
`
`Erika H. Arner (Back-up Counsel) erika.arner@finnegan.com
`Joshua L. Goldberg (Back-up Counsel) joshua.goldberg@finnegan.com
`Kevin D. Rodkey (Back-up Counsel) kevin.rodkey@finnegan.com
`Rachel L. Emsley (Back-up Counsel) rachel.emsley@finnegan.com
`Cory C. Bell (Back-up Counsel) cory.bell@finnegan.com
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`trading-tech-CBM@finnegan.com
`
`Steven F. Borsand (Back-up Counsel) tt-patent-cbm@tradingtechnologies.com
`Jay Q. Knobloch (Back-up Counsel) jay.knobloch@tradingtechnologies.com
`Trading Technologies International, Inc.
`
`Michael D. Gannon (Back-up Counsel) gannon@mbhb.com
`Leif R. Sigmond, Jr. (Lead Counsel) sigmond@mbhb.com
`Jennifer M. Kurcz (Back-up Counsel) kurcz@mbhb.com
`Cole B. Richter (Back-up Counsel) richter@mbhb.com
`MCDONNELL, BOEHNEN, HULBERT & BERGHOFF LLP
`
`
`
`
`
`Date: March 29, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert Sokohl/
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`
`
`
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