Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Trading Techs. Int'l, Inc. v. Speed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Sep. 8, 2010) (Schenkier, Mag. J.).

Judge Schenkier recommended denying plaintiff Trading Technologies' ("TT") motion to enforce the final judgment and for sanctions. The Court also recommended correcting the final judgment to reflect the jury verdict and the remitted damages award. A jury previously awarded TT $3.5M in damages and found defendant's infringement willful. The Court later overturned the willfulness finding and ordered a remittitur of damages to $2.5M, which TT accepted. The Court then granted a permanent injunction and entered a final judgment, but that judgment did not reflect the damages award.

Defendant argued that, despite the jury award and remittitur, there was no damages award because it was not reflected in the final judgment and after the Federal Circuit had decided to appeal it was too late to revise the final judgment.

The Court agreed that the first judgment should have included the award, but not that it was too late to fix it. The Court noted that the most likely explanation for the omission was "the fallibility of human beings (judges included)." The Court also noted that TT should have sought to correct the final judgment immediately. But despite the imprecise judgment, the Federal Circuit ruled upon several issues related to the jury verdict, although not the award itself. And neither TT nor defendants disputed the fact or the amount of the damages award. Based upon those facts, the Court recommended that revising the final judgment to reflect the award would merely "correct a clerical mistake or a mistake arising from oversight or omission" pursuant to Fed. R. Civ. P. 60(a). Finally, the Court recognized TT's frustration over not having received payment 34 months after the jury verdict and 6 months after the Federal Circuit's decision. But the Court recommended not awarding TT its fees because TT's failure to promptly get the judgment corrected was the only reason there was a delay in paying the judgment.

• Email This
• Print
• Trackbacks
• Share Link

ImageCube LLC v. The Boeing Co., No. 04 C 7587, Slip Op. ( N.D. Ill. Jan. 22, 2010) (Dow, J.).

Judge Dow entered a final judgment as to defendant Boeing in this patent case and stayed the remaining claims pending a Federal Circuit appeal of the claim construction and summary judgment of Boeing's final judgment. The parties all agreed that the Court's claim construction and partial summary judgment ended the case as to Boeing. What was left of the case was the remaining defendants' affirmative defenses and noninfringement, invalidity and unenforceability counterclaims. "Mere defenses" are not sufficient to avoid a Fed. R. Civ. P. 54(b) final judgment. Once one defense is decided for defendant, additional defenses need not necessarily be considered. And the remaining counterclaims would all benefit, should they be tried upon remand, from the Federal Circuit's claim construction decision. An immediate appeal might also hasten resolution of the entire case. Plaintiff acknowledged that it was unlikely to pursue its claims if the Federal Circuit upheld the Court's claim construction.

Finally, the Court noted that defendants, over plaintiff's objections, sought and got the schedule they wanted addressing limited issues before full discovery. Defendants cannot, therefore, "complain too loudly" about seeking more definitive resolution of limited issues before turning to the remainder of the case.

• Email This
• Print
• Trackbacks
• Share Link

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Jul. 24, 2008) (Moran, Sen. J.).*

Judge Moran granted defendants’ (collectively “eSpeed”) motion to stay judgment pending appeal without requiring a supersedeas bond for the full amount of the judgment, pursuant to Fed. R. Civ. P. 62(d). Plaintiff Trading Technologies (“TT”) argued that the volatility and instability of the financial industry warranted a bond. But the Court held that the evidence proved that eSpeed was currently financially sound and had more than sufficient funds available to make payment, such that the cost of a bond would be a waste of money. The Court noted that eSpeed (which recently merged with an affiliate, BCG Partners) had $340M in first quarter revenues, $150M in shareholder equity and $200M in cash or cash-equivalents on hand. The Court did, however, note that TT could monitor eSpeed’s financial situation and return to the Court if eSpeed later looks like it might become unable to pay.

*  Click here for much more on this case in the Blog's archives.

• Email This
• Print
• Trackbacks
• Share Link

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312 (N.D. Ill. Jun. 13, 2008).

The Court held that its May 22 permanent injunction against defendant eSpeed (click here for the Blog's post on the injunction) was a final judgment, which allowed for appeal to the Federal Circuit.  Anyone reading the Blog's recent posts regarding the Court's permanent injunction against eSpeed, and eSpeed's appeal of the injunction as well as plaintiff Trading Technologies' ("TT") cross-appeal, might have assumed that the Court had entered a final judgment.  eSpeed apparently did because it filed an appeal of the permanent injunction to the Federal Circuit (click here for the Blog's post on the issues on appeal).  TT filed its broader appeal shortly thereafter (which eSpeed objected to as untimely because the Court had not entered a final judgment on anything beyond the permanent injunction), but disagreed that the Court had entered a final judgment on any issue.  TT, therefore, also filed an emergency motion requesting that the Court vacate its permanent injunction, rule on the parties' cross-motions for attorney's fees (the Court now has ruled on those motions, click here for the Blog's post about that decision) and then reenter the permanent injunction along with final judgment.*

This may seem like irrelevant procedural posturing, but TT explains the appellate rules implications in its emergency motion:

The rules state that the first-filed notice of appeal is the appellant, but when both parties file an appeal on the same day, the plaintiff is deemed the appellant. F.R.A.P. 28.1. Where there is a cross-appeal, the appellant has the advantage of having higher word limits in its briefs and also files the first brief focused solely on the issues it seeks to appeal. The general rule is that a plaintiff, like TT here, has the right to be an appellant if it wants to appeal an issue.

The Court did not directly rule on TT's motion, but effectively decided it by entering this Minute Order stating that its May 22 permanent injunction was a final judgment effective May 22.  The Clerk, who subsequently entered final judgment on all issues effective May 22, and the parties -- eSpeed filed a notice of appeal of all issues rather than its initial appeal of just the injunction -- treated the final judgment as relating to all matters before the Court, which makes both parties' appeals timely.  According to TT's above analysis, because TT filed its appeal after but on the same day as eSpeed, TT will be appellant and eSpeed will be the cross-appellant.

For those concerned that the Blog might be silent about this case for months, have no fear.  The related cases continue and I will continue blogging about both the related cases and the appeal.

*  Click here for TT's emergency motion, click here for eSpeed's response, and click here for TT's reply. Also, click here for much more on this case in the Blog's archives.

• Email This
• Print
• Trackbacks
• Share Link