Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 17
`Entered: August16 , 2016
`
`
`
`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.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2016-00032
`Patent 7,212,999 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper 17
`Entered: August16 , 2016
`
`
`
`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.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2016-00032
`Patent 7,212,999 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`CBM2016-00032
`Patent 7,212,999 B2
`
`
`INITIAL CONFERENCE CALL
`A.
`No initial conference call is scheduled for this case. The parties are
`encouraged to contact the Board to request a call if any issues arise during
`trial. The parties are directed to the following matters:
`Discovery Disputes
`1.
`The panel encourages parties to resolve disputes relating to discovery
`on their own and in accordance with the precepts set forth in 37 C.F.R. §
`42.1(b). To the extent that a dispute arises between the parties relating to
`discovery, the parties shall meet and confer to resolve such a dispute before
`contacting the Board. If a party has in its possession documents that are
`subject to a protective order issued by a court in another proceeding, that
`party should request relief from that court.
`If attempts to resolve the dispute fail, a party may request a
`conference call with the Board and the other party in order to seek
`authorization to move for relief. In any request for a conference call with
`the Board to resolve a discovery dispute, the requesting party shall: (1)
`certify that it has complied with the requirements outlined above in an effort
`to resolve the dispute; (2) identify with specificity the issues for which
`agreement has not been reached; (3) identify the precise relief to be sought;
`and (4) propose specific dates and times at which both parties are available
`for the conference call.
`2. Motion to Amend
`Patent Owner is reminded that it must confer with the Board before
`filing a Motion to Amend. 37 C.F.R. § 42.221(a). Patent Owner should
`contact the Board to request a conference in sufficient time to ensure that the
`conference is conducted at least two weeks before DUE DATE 1. Patent
`
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`CBM2016-00032
`Patent 7,212,999 B2
`
`Owner and Petitioner are directed to the rules governing Motions to Amend,
`with particular regard to applicable page limits. 37 C.F.R. §§ 42.24(a)(1),
`42.24(b)(3), 42.24(c)(3), 42.221(b).
`Confidential Information
`3.
`The parties must file confidential information using the appropriate
`availability indicator in PRPS (e.g., “Board and Parties Only”), regardless of
`whose confidential information it is. It is the responsibility of the party
`whose confidential information is at issue, not necessarily the proffering
`party, to file the motion to seal.
`A protective order does not take effect until a protective order is filed
`in the case and approved by the Board. If a motion to seal is filed by either
`party, the proposed protective order should be presented as an exhibit to the
`motion. The parties are urged to operate under the Board’s default
`protective order. See Default Protective Order, Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012). If the parties propose
`a protective order deviating from the default protective order, they should
`submit the proposed order jointly. A marked-up comparison of the proposed
`and default protective orders should be presented as an additional exhibit to
`the motion to seal, so that differences are highlighted. The parties should
`contact the Board if they cannot agree on the terms of the proposed
`protective order.
`
`Redactions
`a.
`Redactions should be limited strictly to isolated passages consisting of
`confidential information. The thrust of the underlying argument or evidence
`must be discernable from the redacted version.
`
` 3
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`CBM2016-00032
`Patent 7,212,999 B2
`
`
`Confidential Information in Final Written Decision
`b.
`Information subject to a protective order will become public if
`identified in a final written decision in this proceeding. A motion to
`expunge the information will not necessarily prevail over the public interest
`in maintaining a complete and understandable file history. See Office Patent
`Trial Practices Guide, 77 Fed. Reg. at 48, 761.
`
`B. DUE DATES
`This order sets due dates for the parties to take action after institution
`of the proceeding. The parties may stipulate to different dates for DUE
`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6). A
`notice of the stipulation, specifically identifying the changed due dates, must
`be promptly filed. The parties may not stipulate to an extension of DUE
`DATES 6 and 7.
`In stipulating to different times, the parties should consider the effect
`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
`evidence and cross-examination testimony (see section B, below). The
`parties should be mindful that pursuant to 37 C.F.R. § 42.300(c), the
`pendency of the review is normally no more than one year. See 35 U.S.C. §
`326 (11). The effect of any stipulations on the ability to complete review
`within the one year will be taken into account should a party request any
`other extensions of time from the Board. The parties are reminded that the
`Testimony Guidelines appended to the Office Trial Practice Guide, 77 Fed.
`Reg. at 48,772 (Appendix D), apply to this proceeding. The Board may
`impose an appropriate sanction for failure to adhere to the Testimony
`
` 4
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`CBM2016-00032
`Patent 7,212,999 B2
`
`Guidelines. 37 C.F.R. § 42.12. For example, reasonable expenses and
`attorneys’ fees incurred by any party may be levied on a person who
`impedes, delays, or frustrates the fair examination of a witness.
`DUE DATE 1
`1.
`The patent owner may file—
`a. A response to the petition (37 C.F.R. § 42.220), and
`b. A motion to amend the patent (37 C.F.R. § 42.221).
`The patent owner must file any such response or motion to amend by
`DUE DATE 1. If the patent owner elects not to file anything, the patent
`owner must arrange a conference call with the parties and the Board. The
`patent owner is cautioned that any arguments for patentability not raised in
`the response will be deemed waived.
`DUE DATE 2
`2.
`The petitioner must file any reply to the patent owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`DUE DATE 3
`3.
`The patent owner must file any reply to the petitioner’s opposition to
`patent owner’s motion to amend by DUE DATE 3.
`DUE DATE 4
`4.
`a. Each party must file any motion for an observation on the cross-
`examination testimony of a witness (see section C, below) by DUE DATE 4.
`b. Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
` 5
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`CBM2016-00032
`Patent 7,212,999 B2
`
`
`DUE DATE 5
`5.
`a. Each party must file any reply to an observation on cross-
`examination testimony by DUE DATE 5.
`b. Each party must file any opposition to a motion to exclude evidence
`by DUE DATE 5.
`DUE DATE 6
`6.
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`DUE DATE 7
`7.
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`CROSS-EXAMINATION
`C.
`Except as the parties might otherwise agree, for each due date—
`1. Cross-examination begins after any supplemental evidence is due.
`37 C.F.R. §§ 42.53(d)(2).
`2. Cross-examination ends no later than a week before the filing date
`for any paper in which the cross-examination testimony is expected to be
`used. Id.
`D. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
`A motion for observation on cross-examination provides the parties
`with a mechanism to draw the Board’s attention to relevant cross-
`examination testimony of a witness, since no further substantive paper is
`permitted after the reply. See Office Trial Practice Guide, 77 Fed. Reg. at
`48,768. The observation must be a concise statement of the relevance of
`precisely identified testimony to a precisely identified argument or portion
`of an exhibit. Each observation should not exceed a single, short paragraph.
`
` 6
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`CBM2016-00032
`Patent 7,212,999 B2
`
`The parties may respond to the observation. Any response must be equally
`concise and specific.
`
`
`
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`CBM2016-00032
`Patent 7,212,999 B2
`
`
`DUE DATE APPENDIX
`
`
`DUE DATE 1……………….……………………………November 15, 2016
`
`Patent Owner’s response to the petition
`
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2………………………………………….…….February 8, 2017
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3…….………………………………..…………..March 8, 2017
`Patent Owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4……………………………...…………………March 29, 2017
`
`Motion for observation regarding cross-examination of a witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`DUE DATE 5…….……..…………………..……..…………..April 12, 2017
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6…….……………………………..…………...…April 19, 2017
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7….……………..………………………..…………May 3, 2017
`
`Oral argument (if requested)
`
`
`
`
`
`
` 8
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`
`CBM2016-00032
`Patent 7,212,999 B2
`
`PETITIONER:
`Robert Sokohl
`Sterne, Kessler, Goldstein & Fox
`Rsokohl-ptab@skgf.com
`
`Lori Gordon
`Sterne, Kessler, Goldstein & Fox
`Lgordon-ptab@skgf.com
`
`Richard Bemben
`Sterne, Kessler, Goldstein & Fox
`Rbemben-ptab@sdgf.com
`
`
`PATENT OWNER:
`Erika Arner
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Erika.arner@finnegan.com
`
`Joshua Goldberg
`Finnegan, Henderson, Farabow, Garrett & Dunner,
`LLP Joshua.goldberg@finnegan.com
`
`Kevin Rodkey
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Kevin.rodkey@finnegan.com
`
`Rachel Emsley
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Rachel.emsley@finnegan.com
`
`Cory C. Bell
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`cory.bell@finnegan.com
`
`
`Steven Borsand
`Trading Technologies International, Inc.
`tt-patent-cbm@tradingtechnologies.com
`
` 9
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`
`
`
`
`
`CBM2016-00032
`Patent 7,212,999 B2
`
`
`Jennifer M. Kurcz
`McDonnell, Boehnen, Hulbert & Berghoff LLP
`kurcz@mbhb.com
`
`
`
`
`10
`
`
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