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

Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, 2007 WL 2566291 (N.D. Ill. Aug. 29, 2007) (Moran, Sen. J.).

Judge Moran denied plaintiff Trading Technologies’ (“TT”) motion for a protective order to prevent depositions after the close of fact discovery and days before trial was scheduled to begin, although the Court did preclude one deposition. The Court held that defendant eSpeed could depose third party Lorin at Lorin’s convenience for no more than two hours. But eSpeed can only introduce Lorin’s testimony in support of its claim that the alleged prior art GL Win with Trade Pad software existed before the critical date (you can read more about the parties’ dispute over whether the GL Win with Trade Pad software invalidates TT’s patents in the Blog’s archives). The Court, however would not permit the deposition of third party Doug Moneison. TT relied upon Moneison’s declaration in opposing eSpeed’s GL Win with Trade Pad invalidity summary judgment motion. But in its reply brief, TT stated that it would not call Moneison at trial or directly rely upon his declaration. The Court, therefore, held that Moneison’s deposition was not necessary. The Court also allowed eSpeed to file an additional expert report regarding hard drives produced by third party Chicago Mercantile Exchange (“CME”) – CME’s production is discussed in the Blog’s archives – because the Court had been aware of the hard drives and their likely use at trial for some time. Finally, the Court denied TT’s request that evidence regarding GL’s Win with Trade Pad software be precluded at trial because of GL’s alleged failure to produce documents from its website regarding its software. The Court did, however, require that GL perform an additional word search of its website using terms specified by the Court and produce any additional materials found by the search.

Trial started the week of September 10. Expect to see several more opinions in this case and its related cases. Additionally, work has made it difficult for me to observe the trial, but I spent a few hours watching last week and will post some thoughts on it later this week.

*You can read much more about this case and related cases in the Blog's archives.

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Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Aug. 21, 2007) (Moran, Sen. J.).

Judge Moran denied the parties’ cross motions for summary judgment regarding whether GL Win with Trade Pad (“GL Trade Pad”) was invalidating prior art to plaintiff Trading Technologies’ (“TT”) patents. Defendant argued that the GL Trade Pad product was on sale prior to the critical date (the critical date was either March 2, 1999 or June 9, 1999, the Court previously held that it was a question of fact for the jury) based upon a February 19, 1999 software license (“February License”). But because the February License did not specifically name the GL Trade Pad software as part of the licensed software, both parties relied upon extrinsic evidence to prove whether GL Trade Pad was part of the February. The Court held that oral invalidity testimony must be corroborated by evidence other than additional interested oral testimony. eSpeed, therefore, corroborated its main witness’s testimony with Trade Pad software code and catalogs. eSpeed argued that this evidence showed that the Trade Pad software was made and sold on or before the February License and would have been included in the February License. But the Court held that eSpeed’s evidence did not meet its evidence of proving the sale by clear and convincing evidence. TT challenged each piece of eSpeed’s evidence and the Court could not decide summary judgment of invalidity based upon eSpeed’s remaining evidence – oral testimony of an interested party (GL is a defendant in a related case). The jury must weigh competing testimony and judge the witnesses' credibility. 

Trial started in this case the week of September 10. Expect to see several more opinions in this case and its related cases (there are two weighty summary judgment opinions still in my queue, as well as several other smaller opinions and orders). Additionally, I have some other obligations, but am planning to blog some of the trial. Stay tuned.

*You can read much more about this case and related cases in the Blog's archives.

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