`
`
`Paper No.
`Filed: March 9, 2020
`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.
`
`
`
`
`
`Case CBM2016-00054
`Patent No. 7,693,768
`
`
`
`PATENT OWNER’S MOTION TO EXPUNGE
`
`
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`
`I.
`
`Statement of Relief Requested
`Pursuant to this Board’s authorization on February 25, 2020, Trading
`
`Technologies International, Inc. (“TT” or “Patent Owner”), respectfully requests
`
`that all confidential information be expunged from the record pursuant to
`
`Rule 42.56 and not be made public. Patent Owner has conferred with Petitioners
`
`on this request and Petitioners do not oppose.
`
`II. Reasons Why Requested Relief Should Be Granted
`A. The Board Found Good Cause to Seal the Confidential Information
`In connection with its Patent Owner’s Response, TT filed a Motion to Seal.
`
`(Paper 23). This motion covered the confidential version of the Patent Owner’s
`
`Response (Paper 20), confidential versions of Exhibits 2172 (Declaration of J.
`
`Knobloch) and 2169 (Declaration of C. Thomas), and thirty-seven exhibits to the
`
`Declaration of C. Thomas (Exhibits 2143, 2144, 2154, 2224, 2225, 2232, 2247,
`
`2270, 2286, 2294, 2295, 2501, 2502, 2503, 2504, 2506, 2507, 2508, 2509, 2510,
`
`2511, 2512, 2513, 2514, 2515, 2516, 2517, 2518, 2520, 2521, 2522, 2524, 2525,
`
`2526, 2527, 2529, and 2530). TT identified that the sealed papers contain sensitive
`
`business information that would not otherwise be published or made available to
`
`the public. Additionally, TT made all of the non-confidential information publicly
`
`available in non-confidential versions. (Paper 23, at 6-7).
`
`- 1 -
`
`
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`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`In connection with their Reply, Petitioners also filed a Motion to Seal
`
`(Paper 39). This motion covered two exhibits (1063 and 1064)—the deposition
`
`transcripts of Christopher H. Thomas—which were marked confidential by TT
`
`pursuant to the Protective Order. (Paper 39, at 1). Petitioners represented that, to
`
`the best of their knowledge, the documents had not been made publicly available.
`
`(Id.). On November 7, 2017, the Board denied Petitioners’ motion to seal, but
`
`authorized the parties to jointly file a revised motion to seal along with redacted
`
`exhibits. On November 16, 2017, the parties filed a Joint Motion to Seal (Paper
`
`63) requesting that the Board maintain as confidential and under seal portions of
`
`Exhibits 1063 and 1064.
`
`Finally, Patent Owner filed a Motion to Seal in connection with its
`
`Demonstratives. (Paper 56). Specifically, TT requested that its Demonstratives
`
`(Exhibit 2359) be sealed because they contained sensitive business information
`
`that would not otherwise be published or made available to the public. TT filed a
`
`public version of its Demonstratives. (Paper 56, at 1).
`
`On November 21, 2017, the Board granted the motions to seal (Paper 64, at
`
`2-3), finding that “good cause exists.” It also found, however, that Patent Owner’s
`
`request “that the information filed under seal in these proceedings be expunged
`
`from the record within ten days of the disposition of all appeals” was “premature.”
`
`(Paper 64, at 4). The Board instructed Patent Owner to request authorization to file
`
`- 2 -
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`a renewed motion to expunge at the conclusion of appeal. (Id.). Because the
`
`appeals in this case have now been concluded, with the Supreme Court denying
`
`Patent Owner’s petition for a writ of certiorari, this motion to expunge is now ripe
`
`for decision. Because the Board already found good cause to seal these materials,
`
`the motion to expunge should be granted.
`
`Additionally, Exhibits 2403-2404 and 2406 were confidentially filed on the
`
`docket and should be expunged for the same reasons as above. Namely, these
`
`exhibits consist of deposition transcripts of TradeStation’s employee, John
`
`Bartleman, and an exhibit used in such depositions. These confidential exhibits
`
`contain sensitive business information that would not otherwise be published or
`
`made available to the public. Accordingly, these materials should also be
`
`expunged from the record.
`
`B. The Sealed Documents Contain Confidential and Sensitive Business
`Information that was not Relied on by the Board in the Final Written
`Decision
`For the same reasons set forth in the parties’ motions to seal, namely that the
`
`sealed information “contain[s] information identified . . . as sensitive, non-public
`
`information, that a business would not make public,” (E.g., Paper 56, at 1), all the
`
`information filed under seal in this matter should be expunged from the record.
`
`Expunging the sealed information will avoid the prejudice to the parties that would
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`be caused by public disclosure of their sealed information.
`
`- 3 -
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`In particular, the confidential materials covered by Patent Owner’s first
`
`motion to seal (Paper 23) include TT’s internal financial information relating to the
`
`amount of money derived from royalty and settlement payments, third-party
`
`business strategy information and third-party admissions/statements, and
`
`discussions of Petitioners’ own confidential information obtained in a related
`
`district court proceeding. (Paper 23, at 3-6). The materials covered by Petitioner’s
`
`motion to seal (Paper 39), and later the parties’ joint motion to seal (Paper 63),
`
`include the deposition transcripts of Christopher H. Thomas, which include
`
`confidential licensing information and information regarding compensation.
`
`(Paper 39, at 1; Paper 63, at 1-2). Finally, the confidential materials covered by
`
`Patent Owner’s second motion to seal (Paper 56) include information related to
`
`internal technical specifications that TT obtained in a related district court
`
`proceeding pursuant to a protective order. (Paper 56, at 3-4). None of the sealed
`
`information was relied on in the Final Written Decision (Paper 64, at 3).
`
`III. Conclusion
`Patent Owner respectfully requests that because all appeals have been
`
`exhausted in this matter, the sealed materials be expunged from the CBM docket.
`
`
`
`
`
`- 4 -
`
`
`
`
`
`Dated: March 9, 2020
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`Respectfully submitted,
`
`By: /Jennifer M. Kurcz/
`Jennifer M. Kurcz
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`One North Wacker Drive
`Suite 4500
`Chicago, IL 60606
`312-416-6200
`jkurcz@bakerlaw.com
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`- 5 -
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on March 9, 2020, a copy of the
`
`foregoing PATENT OWNER’S MOTION TO EXPUNGE was served via e-
`
`mail on the following:
`
`Robert E. Sokohl
`Lori A. Gordon
`Richard M. Bemben
`STERNE KESSLER GOLDSTEIN & FOX PLLC
`1100 New York Avenue, NW
`Washington, DC 20005
`202-371-2600
`Rsokohl-PTAB@skgf.com
`Lgordon-PTAB@skgf.com
`Rbemben-PTAB@skgf.com
`PTAB@skgf.com
`John C. Phillips
`FISH & RICHARDSON, PC
`12390 El Camino Real
`San Diego, CA 92130
`CBM41919-0008CP1@fr.com
`/Jennifer M. Kurcz/
`Jennifer M. Kurcz
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`One North Wacker Drive
`Suite 4500
`Chicago, IL 60606
`312-416-6200
`jkurcz@bakerlaw.com
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`
`
`
`
`
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