Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, Slip op. (N.D. Ill. June 20, 2007) (Moran, Sen. J.).*
Judge Moran granted defendants (collectively "eSpeed") summary judgment of noninfringement regarding eSpeed’s Dual Dynamic, eSpeedometer and Modified eSpeedometer products (collectively the "Products").** The Court held that none of the Products met the "static" limitation in the claim terms "common static price axis" and "static display of prices." In previous opinions, the Court construed and reconstrued "common static price axis" as:
a line comprising price levels that do not change positions unless a manual re-centering command is received . . . .
(emphasis added). The Court also construed "static display of prices" as:
a display of prices comprising price levels that do not change positions unless a manual rec-centering command is received.
(emphasis added). Because each of the Products included either an automatic re-centering feature or "drift" re-centering (automatic re-centering in response to market changes), the Court held that the Products did not meet the "static" limitation and, therefore, did not literally infringe plaintiff Trading Technologies’ ("TT") patents. In support of its ruling, the Court cited its claim construction reconsideration opinion (discussed in the Blog’s archives), where it explained that "any movement of the static price axis leaves accused technology outside the protection of [TT’s] patents."
The Court also held that the Products do not infringe pursuant to the doctrine of equivalents. With respect to the Products that used automatic re-centering, the Court held that regardless of how infrequent the re-centering might occur a holding that automatic changing of positions was equivalent to only changing positions manually would "vitiate the ‘static’ requirement." The Court held that the Products that used "drift" re-centering were equivalent because there was a "mouse lock" mechanism to ensure a trader never lost a price (the purpose of the "static" requirement").
But the Court held that prosecution history estoppel barred TT from relying upon the doctrine of equivalents with respect to the "static" limitation. During prosecution, TT amended its claims adding the requirements that the "static price axis" and the "static display of prices" could "not move." These amendments barred use of the doctrine of equivalents.
The Court also addressed the parties’ arguments with respect to the "order entry region" limitation despite the fact that it could not change the outcome of the Court’s decision "[b]ecause [the Court was] convinced that regardless of the outcome, this case will surely make its way to the Federal Circuit . . . ." The Court explained that it "would likely determine" that the Products contain an "order entry region" and grant summary judgment on that issue for TT. But because the Products did not meet the "static" limitation, the Court granted summary judgment of noninfringement for eSpeed.
** The Products are not eSpeed’s only accused products, so this decision does not remove eSpeed from the case.