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Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Jan. 2, 2007) (Moran, Sen. J.).*
Judge Moran denied defendants’ (collectively “eSpeed”) motion for judgment as a matter of law that plaintiff Trading Technologies’ (“TT”) patent was invalid for indefiniteness based upon the claim term “single action of a user input device” (“Single Action”). The Court previously construed Single Action as “an action by a user within a short period of time that may comprise one or more clicks of a mouse button or other input device.” Before trial, the Court used the definition to exclude evidence regarding a Tokyo Stock Exchange (“TSE”) software package that required double clicking, entering a quantity and pressing “enter” – click here for the Blog’s discussion of that opinion.
TT argued that the phrases “one or more clicks” and “short period of time” in the Court’s construction were indefinite because they did not sufficiently delineate the scope of the term. The Court noted that it did not need absolute clarity to define a claim term and held that the Single Action was sufficiently definite. The Court reasoned that it had been able to construe the term based largely upon the specification. And neither “one or more clicks” nor “short period of time” rendered the claim indefinite because the phrases are part of the definition, not the claim language.
Additionally, the terms were designed to be less than precise because Single Action is defined from the perspective of the individual user, not objectively for all users. The Court gave the example that an experienced trader might set a double click as two clicks occurring within .3 seconds of each other – which would be a Single Action – while a novice trader might set a double click as any two clicks within one second of each other – which would be a Single Action for the novice, but not the experienced trader. Creating a more fixed definition based on an average user would import limitations into the claim.
Finally, the fact that the Court was able to determine that the TSE software did not require only a Single Action further proved that Single Action was sufficiently definite.
* Click here to read much more about this case in the Blog’s archives and click here for a copy of this opinion.
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Continue Reading Trading Technologies v. eSpeed: Ambiguous Term Not Indefinite Because it can be Construed

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Min. Orders (N.D. Ill. Jan. 3, 2007) (Moran, Sen. J.).*
In addition to the willfulness decision discussed earlier today (click here for the post) and the invalidity decision that I will blog about early next week, Judge Moran also issued two minute orders deciding several of the outstanding post-trial motions. The Court denied defendant eSpeed’s motion for a new trial and its combined motion for judgment as a matter of law that: 1) the claims are invalid because of anticipation, obviousness, prior sale; and 2) because the claims have a June 9, 2000 priority date they were not infringed.
There are still several pending motions, including various motions regarding damages and interest on the jury’s award and eSpeed’s motion for an evidentiary hearing regarding inequitable conduct. I will keep you posted as those are decided.
* Click here to read much more about this case in the Blog’s archives.
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Continue Reading Trading Technologies v. eSpeed: Minute Orders

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Jan. 3, 2007) (Moran, Sen. J.).*
Judge Moran granted defendants’ (collectively “eSpeed”) motion for judgment as a matter of law that their infringement was no willful. The Court instructed the jury using the objective recklessness standard from In re Seagate Techs., LLC, 497 F.3d 1360 (Fed. Cir. 2007), but when the Court reviewed the totality of the circumstances it found no support for the willfulness verdict and, more specifically that plaintiff Trading Technologies (“TT”) had not met its burden of proving that there was an objectively high likelihood of infringement when eSpeed sold its infringing product, Futures View. When eSpeed launched Futures View, TT’s patent had not issued. And while eSpeed was aware of the application, knowledge of an application does not prove willfulness. Furthermore, TT produced no evidence of post-issuance willfulness. TT submitted two internal eSpeed emails, but both were sent before TT’s patent issued and the emails only suggested that eSpeed should mimic certain features of the TT software. And upon learning of TT’s issued patent, eSpeed immediately began a redesign of Futures View, resulting in new software products that the Court granted summary judgment of noninfringement. As a result of the redesign, the infringing Futures View was only on the market for five months after TT’s patent issued.
TT also argued that eSpeed’s failure to make noninfringement arguments in preliminary injunction proceedings showed willfulness. But the Court held that eSpeed denied infringement in its answer and that there was no need to argue noninfringement of Future View in preliminary injunction proceedings because eSpeed was not selling Future View. There was no danger of an injunction over a product eSpeed was not selling.
Finally, TT argued that eSpeed’s creation of a $4M escrow account related to potential infringement of the TT patent when it purchased defendant Ecco was proof of willfulness. The Court, however, held that the escrow account was merely assignment of risk in a business deal. When eSpeed purchased Ecco, TT had already sued eSpeed and to the extent that there was any risk that Ecco products could infringe the TT patent, the escrow account was not an admission, but a “shrewd business practice.”
Expect to see more on TT v. eSpeed this week. The Court has issued its first few post-trial opinions and I am sure others are on their way before this case heads, presumably, to the Federal Circuit.
* Click here to read much more about this case in the Blog’s archives and click here for a copy of this opinion.
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Continue Reading Trading Technologies v. eSpeed: Court Overturns Jury’s Willfulness Verdict

Lots of blogs have been doing top ten lists or posts pondering their past year or resolving to do more in 2008. That is not my style.* But Wired’s top ten list of startups to watch in 2008 caught my eye because of a Chicago connection – click here for the entire list. Second on the list (alphabetically) is Chicago company 37Signals, a company that makes a suite of personal and business management software. I am trying out their web-based calendar and organization tool Backpack and, so far, I have been impressed. Here is what Wired says about 37Signals:
There’s a reason nobody ever uses the phrase, “It’s as simple as computer programming.” But Chicago’s 37Signals has made life simpler for programmers and small businesses alike with products such as Basecamp (project management software) and an increasingly popular open source web framework called Ruby on Rails. The company ditches the philosophy of “more features, more better” in favor of simplicity and accessibility: Focus only on the most important features and make things easier to use. The company itself embodies its keep-it-simple philosophy: Fewer than 10 staffers, working from humble offices, create programs quickly and nimbly adapt them based on user feedback. 37Signals released version 2.0 of Ruby on Rails in December, which should give many programmers a happy new year.
Founders: Jason Fried, Ernest Kim, Carlos Segura
Funding: Undisclosed sum from Bezos Expeditions
Employees: 8
* I will say that the Blog’s top two stories of the year were without question the Patent Reform Act and Trading Technologies v. eSpeed.
For some other good IP-related top ten or end of the year lists, check out:
Patent Docs (Top fifteen Patent Docs stories of the year, 11-15, 6-10 and 1-5)
Patently-O (Hal Wegner’s top ten 2008 patent cases)
TinyTech IP (Top ten nanotechnology patents)
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Continue Reading Chicago’s 37Signals One to Watch in 2008

The post-trial briefing appears to be complete. And Judge Moran recently heard argument on, but did not decide, eSpeed’s motion for an evidentiary hearing on inequitable conduct. The Court held a status conference for this case and Trading Technologies’ related cases yesterday, December 20. I was unable to attend, so I do not know if the Court ruled on any motions or otherwise discussed how the case will proceed. But I will keep you posted as I get more information.
* Click here to read much more about this case and Trading Technologies’ (“TT”) related cases in the Blog’s archives.
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Continue Reading Trading Technologies v. eSpeed: Post-Trial Update

II have not been able to fulfill my promised additional coverage of the inequitable conduct portion of the Trading Technologies v. eSpeed case, but it is not my fault.* The Court decided to consider eSpeed’s inequitable conduct and patent misuse defenses on the papers. The Court ordered a briefing schedule that will complete briefing by early December for eSpeed’s inequitable conduct and patent misuse defenses , as well as eSpeed’s post-trial motions regarding willfulness and damages remittitur and TT’s motions for its attorneys’ fees and costs. The Court has scheduled a status conference for December 20th. Perhaps the parties will have rulings by the end of the year.
Practice tip: In my experience, one of the dangers of doing inequitable conduct after the conclusion of the jury trial is that both the Court and the parties are exhausted and emotionally drained at the end of the jury trial (particularly after a multi-week trial like this one). So, when it is time to try inequitable conduct, either the Court no longer wants the trial or the parties and the Court are so exhausted that they have trouble keeping their focus and energy level where it was for the jury trial despite the importance of the issues. I do not know why the parties or the Court decided that inequitable conduct should be decided on the papers in this case. But any time that inequitable conduct is to be tried after a jury trial, you run the risk that no live evidence will come in on inequitable conduct.
* Click here to read much more about this case and Trading Technologies’ (“TT”) related cases in the Blog’s archives
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Continue Reading Trading Technologies v. eSpeed: Inequitable Conduct Proceedings Update

I have already posted on the verdict generally, but the jury’s completed verdict form is now available and provides some more detailed information — click here for a copy. The jury found infringement, either literal, contributory or induced, for every accused product on every asserted claim. The $3.5M damages award was split $1.5M against eSpeed and $2M against Ecco. And both eSpeed and Ecco were found to have willfully infringed the patents.
Additionally, click here for the final jury instructions. Of particular interest, the willfulness instruction, at page 35, is likely one of the first that used the new objective recklessness standard from In re Seagate.
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Continue Reading Trading Technologies v. eSpeed: Jury Verdit Form

As I posted yesterday afternoon, the jury came back for Trading Technologies (“TT”). The jury found that eSpeed willfully infringed TT’s patents for a six month period in 2004, found the patents valid and awarded $3.5M in damages. The parties have not completed their bench trial on inequitable conduct. So, the Court may still hold the patents invalid based upon inequitable conduct, which would render the $3.5M damages award moot. But unless and until that happens, the award stands and has the potential to be as much as trebled based upon the willfulness finding.
There has been some press coverage already. Here is some of the best:
Crain’s Chicago Business
Wall Street Journal (subscription required)
Ad Hoc News
CNN Money (AP story)
Futures Magazine
Reuters
You can read much more about this case and its related cases in the Blog’s archives by clicking here.
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Continue Reading Trading Technologies v. eSpeed: Verdict Update

The jury returned a verdict for Trading Technologies, finding infringement and awarding $3.5M for software sold by eSpeed over six months in 2004. The Court previously granted summary judgment of noninfringement for eSpeed’s software from 2005 to the present. I will provide more particulars as soon as I can get them. And I will continue posting about a few of Judge Moran’s opinions from the case, in addition to his opinions regarding the post-trial motions that I am sure will be filed.
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Continue Reading Trading Technologies v. eSpeed: Jury Verdict

The jury continued its deliberations yesterday and reconvened this morning. That is not a very informative update, but based on the Blog’s traffic this week people are looking for updates on the case. And that is all there is right now.
A relative who is a criminal defense attorney, often said that longer jury deliberations benefited the defense. Of course, when he had a close case and a fast jury, he sometimes thought that benefited the defense also. It is difficult to read the tea leaves with a jury. But I will let you know as soon as I learn the jury’s verdict. For more on the case and Trading Technologies’ related cases click here for the Blog’s archives.
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Continue Reading Trading Technologies v. eSpeed: Jury Deliberations Update