Trading Techs. Int’l, Inc. v. CQG, Inc., No. 05 C 4811, Slip Op. (N.D. Ill.) (Coleman, J.).

Judge Coleman granted plaintiff Trading Technologies’ (“TT”) motion to terminate Markman proceedings in this patent case involving commodities trading software — click here for much more on this case in the Blog’s archives).  Defendants (collectively “CQG”) sought

Trading Techs. Int.’l, Inc. v. BCG Partners, Inc., No. 10 C. 715 (Consolidated), Slip Op. (N.D. Ill. Mar. 28, 2011) (Kendall, J.).
Judge Kendall denied without prejudice defendant’s (collectively “BCG”) motion to dismiss for lack of personal jurisdiction. BCG argued that its named entities were holding companies without operational responsibility, and that none had officers in Illinois. Plaintiff Trading Technologies (“TT”), however, produced evidence that one or more of the BCG entities had Illinois officers in Illinois for the purposes of selling the accused eSpeed software. Furthermore, certain government filings suggested that one or more of the BCG entities were operational entities. The Court, therefore, denied BCG’s motion with leave to refile after the parties completed limited jurisdictional discovery and TT replead to the extent it felt necessary.

Continue Reading Trading Technologies: Court Grants Limited Jurisdictional Discovery

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Mar. 29, 2011) (Dow, J.).
Judge Dow amended the final judgment in this case to reflect the jury verdict and post-remittitur damages award of about $2.5M — go to the Blog’s archives for much more on this case and related cases. The Court also, after a de novo review, adopted Judge Schenkier’s report and recommendation on the motion. Plaintiff Trading Technologies (“TT”) sought to amend the Court’s final judgment, entered by the late Judge Moran, pursuant to Fed. R. Civ. P. 59(e) or 60(a), to reflect the damages award, and sought its fees for bringing the instant motion. The Court held as follows:
While it may have been too late to amend the judgment pursuant to Rule 59(e), the Court had discretion to amend pursuant to Rule 60(a) to correct an “oversight or omission.” The record established that TT and defendants (collectively “eSpeed”) understood that there was a money judgment. For example, eSpeed moved the Court to waive the supersedes bond normally required to appeal a case with money damages.
The Federal Circuit and the parties understood the appeal to be on all issues, not just injunctive relief. As such, eSpeed cannot argue that it held back arguments on appeal, that it might otherwise have made if eSpeed had known the appeal went beyond injunctive issues.
Whatever TT’s reason for not seeking to correct the judgment with Judge Moran while the case was still pending before him, all parties understood that the judgment included the money damages.
Finally, the Court denied TT’s request for it fees incurred bringing the motion. First, both parties should have sought to correct the judgment when it was entered. Second, TT’s fee request was undermined by its unreasonable demand in the initial motion that eSpeed pay the money damages within five days.

Continue Reading Trading Technologies: Final Judgment Amended to Include Monetary Damages

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Oct. 29, 2010) (Dow, J.).
Judge Dow denied defendants’ (collectively “eSpeed”) motion to strike or stay consideration of plaintiff Trading Technologies’ (“TT”) bill of costs, and awarded TT $381,831.04 in costs.* Because TT received a damages award at trial, TT was the prevailing party and costs were warranted, absent TT’s trial misconduct or eSpeed’s inability to pay. The fact that TT lost on the issue of eSpeed’s alleged willfulness did not change TT’s status as the prevailing party, nor did the fact that eSpeed was found not to infringe based upon several of its software packages. The Court had previously stayed a determination of the bill of costs pending the Federal Circuit appeal. So, with the appeal complete, there was no reason left to delay the Court’s decision.
The Court then turned to the bill of costs. The following determinations were of particular note:
The Court awarded all undisputed witness travel, attendance and subsistence costs, totaling approximately $21,000. The Court denied travel costs for a trial witness that was flown to trial from Switzerland, rather than from his home in Ohio. Witness fees are only allowed for the shortest possible route from the witness’s residence.
The Court awarded videography costs only for depositions of foreign witnesses that TT disclosed as potential trial witnesses.
Court reporter appearance fees were denied because they are only allowed to the extent the fee plus the per-page rate charged does not exceed the Judicial Conference’s limit. In this case, the per page rate was already more than the allowed per-page recovery.
Because hearing transcripts played a significant role in the case, the Court awarded TT the allowable hearing transcript fees.
The Court awarded 25% of TT’s photocopying request. The reduction accounted for various non-copying charges, such as OCR, blowbacks, etc. and multiple copies of some documents. Recovery is only allowed for a single copy of a document, in most cases.
No costs were awarded for translation because § 1920(6) does not authorize recovery of translation costs, except for “check interpreters” used at trial to dispute certain interpretations.
The Court refused to apportion TT’s costs based upon the portion of the case that eSpeed won (summary judgment of noninfringement) versus the jury award that TT won.
* Click here for much more on this case in the Blog’s archives.

Continue Reading Court Will Not Apportion Costs to Prevailing Party Based Upon How Much of the Case was Won

Trading Techs. Int’l, Inc. v. eSpeed, Inc., Case Nos. 2008-1392,-1393 & -1922, Slip Op. (Fed. Cir. Feb. 25, 2010) (Rader, J.) (Clark, J. concurring).
Writing for a panel including Judge Lourie and Eastern District of Texas District Judge Clark, Judge Rader affirmed each of the challenged decisions from Judge Moran’s jury trial in this patent litigation involving futures trading software.
For much more on this case, click here to read numerous posts in the Blog’s archives analyzing Judge Moran’s opinions and various aspects of the jury trial. Judge Moran construed the claims of the patents-in-suit, ruled upon several summary judgment motions and presided over the jury trial. The jury found that defendants’ (collectively “eSpeed”) Future View software willfully infringed the patents and that the patents were valid, awarding plaintiff Trading Technologies (“TT”) $3.5M. Judge Moran remitted the damages overall to approximately $2.5M.
Claim Construction
The most interesting aspect of the decision is the discussion of the de novo review of claim construction decisions. Judge Rader spent two and a half pages explaining the fact-law dichotomy of claim construction and concluded that claim construction required resolution of evidentiary and factual issues before construing the disputed terms:
In sum, claim construction involves many technical, scientific, and timing issues that require full examination of the evidence and factual resolution of any disputes before setting the meaning of the disputed terms.
And District Judge Clark wrote a concurring opinion solely to argue against de novo review:
[de novo review] may result in the unintended consequences of discouraging settlement, encouraging appeals, and, in some cases, multiplying the proceedings.
After a de novo review of his decisions, the Court upheld Judge Moran’s constructions. “Static display of prices” meant “a display of prices comprising price levels that do not change positions unless a manual re-centering command is received.” And a “static condition” meant that “the price axis never changes positions unless by manual re-centering or re-positioning.” While Judge Moran’s constructions may have appeared narrower than the patent intended initially, they were supported by both the intrinsic and extrinsic evidence. Because eSpeed’s Dual Dynamic and eSpeedmeter systems had mandatory re-centering features, they did not literally infringe.
Doctrine of Equivalents
The court upheld Judge Moran’s ruling that the doctrine of equivalents did not apply to the static elements in the claim. Even if the accused products only re-centered once or twice a day, allowing that re-centering to be captured by the doctrine of equivalents would vitiate the claims. Furthermore, prosecution history estoppel also barred equivalents. The patentee differentiated his invention by explaining that its “price axis do[es] not move.”
The Court upheld Judge Moran’s ruling overturning the jury’s willfulness finding. eSpeed’s prompt redesign efforts and immediate removal of infringing products were not objectively reckless. And TT offered no evidence that eSpeed sold Future Views during the contested period.
The Court held that “single action of a user input device” was not indefinite. Judge Moran correctly construed the term as requiring “an action by a user within a short period.” One of ordinary skill in the art could distinguish between single and multiple actions, even when a “single action” was a double-click.
Priority Date
The Court held that there was an issue of material fact regarding the priority date warranting a jury trial. The Court upheld the use of patent law experts, and found a sufficient basis for the jury’s priority decision:
Considering the undisputed knowledge of those skilled in the art, disclosure of a species in this case provides sufficient written description support for a later filed claim directed to a very similar and understandable genus. Accordingly, the patents-in-suit are entitled to claim priority to the provisional application.
Inequitable Conduct
The Court upheld Judge Moran’s ruling that failure to disclose certain software to the PTO was not inequitable conduct. The software was not material because the software’s use after the priority date would not have impacted the examiner’s analysis. And confidential use of the software for personal purposes was experimental.

Continue Reading Questioning De Novo Claim Construction Review

Rosenthal Collins Group, LLC v. Trading Techs. Int’l., Inc., No. 05 C 4088, Slip Op. (N.D. Ill. Sept. 18, 2009) (Dow, J.).
Judge Dow denied the parties’ cross-motions for summary judgment in this patent dispute regarding software for electronic futures trading using a static price axis.* Although the other related cases are stayed pending an appeal of the related eSpeed case to the Federal Circuit, declaratory judgment defendant Trading Technologies (“TT”) sought and Judge Moran agreed to allow this case to proceed based upon TT’s agreement that declaratory judgment plaintiff Rosenthal Collins Group (“RCG”) infringed even under the Court’s allegedly narrow construction of a “common static price axis” and “static display of prices.” TT sought to broaden the constructions on appeal. The parties agreed on how the accused Onyx software operated. The price axis was generally dynamic. But if a user pointed a cursor in the window containing the axis, the axis became static until the cursor was removed or after thirty seconds, whichever came first. TT identified this as Onyx’s order entry mode. And because Onyx has a static axis in order entry mode, TT argued that Onyx infringed based upon the order entry mode, even if it did not infringe in other modes. RCG argued that Onyx only had a single mode, and because the price axis was not consistently static, without manual recentering, there was no infringement. The Court held that whether Onyx operated in three modes and, therefore, infringed, or operated in a single mode and, therefore, did not was a question of fact. The case, therefore, was not appropriate for summary judgment.
The Court also stayed the case pending appeal of the eSpeed case, except for TT’s motion for default and sanctions.
* Click here for much more on this case and its related cases in the Blog’s archives.

Continue Reading Whether Software Operates in One or Three Modes is a Question of Fact

Trading Techs. Int’l., Inc. v. CQG, Inc., No. 05 C 4811, Slip Op. (N.D. Ill. Feb. 17, 2009) (Moran, Sen. J.).
Judge Moran denied a motion to reconsider an earlier order continuing a summary judgment motion and staying the case pending the appeal of a related case, Trading Technologies v. eSpeed.* The Court also ordered the parties to meet and confer regarding how to exchange defendants’ sensitive trading information. The Court previously ordered defendants to work with plaintiff Trading Technologies (“TT”) to determine how to produce defendants’ raw transaction data, which was required for a damages calculation. The parties could not agree on how to exchange the information because of defendants’ unwillingness to provide such sensitive data to TT without restrictions. The Court ordered the parties to continue trying to resolve the issue and suggested various ways that the information could be exchanged without forcing defendants to provide all of their sensitive business information.
* Click here for much more on this case and the related cases in the Blog’s archives.

Continue Reading Trading Technologies v. eSpeed: Parties Ordered to Work Out Discovery Issues

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.

Continue Reading Trading Technologies v. eSpeed: Judgment Stayed Pending Appeal

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.

Continue Reading Trading Technologies v. eSpeed: Final Judgment

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. May 22, 2008) (Moran, Sen. J.).*
Judge Moran denied the party’s cross motions for attorney’s fees. Plaintiff Trading Technologies (“TT”) argued that the case was exceptional. But the Court held that it was not for the following reasons:
eSpeed’s refusal to admit infringement was reasonable. A defendant requiring plaintiff to make its proofs does not alone make a case exceptional.
eSpeed’s decision not to agree to an interlocutory appeal of claim construction and noninfringement decision was not grounds to make the case exceptional. Although eSpeed argued against an interlocutory appeal, the Court made the ultimate determination.
eSpeed’s pursuit of its inequitable conduct claim, which it lost after a bench trial, did not make the case exceptional. In the Court’s opinion regarding inequitable conduct, the Court ruled for TT, but noted that eSpeed’s case was not frivolous – click here to read the Blog’s post about that opinion.
The jury’s willfulness finding did not make the case exceptional. This was especially true because the Court overturned the jury’s willfulness decision based upon In re Seagate – click here to read the Blog’s post about that case.
The Court noted that neither party in this case acted more outrageously than the other. Counsel for both parties were zealous advocates that pushed, but did not go beyond, the envelope.
eSpeed argued that the Court should award it attorney’s fees, pursuant to Fed. R. Civ. P. 37(e)(2), for proving that a particular use of a software package was commercial and not experimental, a fact that TT denied in a request for admission. The Court chose not to rule on TT’s and eSpeed’s respective procedural arguments regarding whether TT was required to admit the use was commercial. Instead, the Court denied attorney’s fees because of the Court’s earlier ruling that failure to disclose the commercial use in question to the Patent Office was not inequitable conduct because the use occurred before the critical date. And, as with eSpeed’s decision to hold TT to its proofs, the Court would not punish TT for holding eSpeed to its proofs on inequitable conduct.
* Click here to read this opinion and click here to read much more about this case in the Blog’s archives.

Continue Reading Trading Technologies v. eSpeed: No Attorney’s Fees