Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, Slip Op. (N.D. Ill. Aug. 20, 2007) (Moran, Sen. J.).*
Judge Moran denied defendant eSpeed, Inc.’s (“eSpeed”) renewed motion to bifurcate willfulness and damages from the liability phase of the trial. The Court denied eSpeed’s original bifurcation motion. The Court noted that since the initial motion, the Court had issued claim constructions largely favorable to eSpeed and summary judgment of noninfringement as to the majority of eSpeed’s accused products. But the Court had also denied eSpeed’s motions for summary judgment of invalidity, leaving invalidity to be resolved by the jury. The Court reasoned that the Real v. Bunn-O-Matic, 195 F.R.D. 618 (N.D. Ill. 2000) factors weighed in favor of not bifurcating the trial or were neutral. The Court’s summary judgment of noninfringement rulings severely limited the damages case and "significantly simplified" the infringement issues.
The Court also held that eSpeed would not be prejudiced because of a Quantum dilemma. The Court explained that the Quantum dilemma — created when a defendant had to choose between maintaining privilege and defending itself against willfulness allegations by producing an opinion letter — was substantially limited by the Federal Circuit’s Knorr-Bremse Sys. v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004) decision eliminating the adverse inference where defendant did not obtain or produce an opinion of counsel. The Court also noted that any potentially prejudicing evidence at trial could be cured with a limiting instruction.
Trial is set to start in this case the week of September 10. Between now and then expect to see several more opinions (including another this week on a bifurcation issue) in this case and its related cases. Additionally, I have some other obligations that week, but am planning to blog some of the trial. Stay tuned.