I have not been able to fulfill my promised additional coverage of the inequitable conduct portion of the Trading Technologies v. eSpeed case, but it is not my fault.* The Court decided to consider eSpeed’s inequitable conduct and patent misuse defenses on the papers. The Court ordered a briefing schedule that will complete briefing by early December for eSpeed’s inequitable conduct and patent misuse defenses , as well as eSpeed’s post-trial motions regarding willfulness and damages remittitur and TT’s motions for its attorneys’ fees and costs. The Court has scheduled a status conference for December 20th. Perhaps the parties will have rulings by the end of the year.
Practice tip: In my experience, one of the dangers of doing inequitable conduct after the conclusion of the jury trial is that both the Court and the parties are exhausted and emotionally drained at the end of the jury trial (particularly after a multi-week trial like this one). So, when it is time to try inequitable conduct, either the Court no longer wants the trial or the parties and the Court are so exhausted that they have trouble keeping their focus and energy level where it was for the jury trial despite the importance of the issues. I do not know why the parties or the Court decided that inequitable conduct should be decided on the papers in this case. But any time that inequitable conduct is to be tried after a jury trial, you run the risk that no live evidence will come in on inequitable conduct.
* Click here to read much more about this case and Trading Technologies’ ("TT") related cases in the Blog’s archives