Trading Techs., Int’l, Inc. v. BGC Partners, Inc., No. 10 C 715 (Consolidated Cases), Slip Op. (N.D. Ill. Apr. 22, 2011) (Schenkier, Mag. J.).
Judge Schenkier ruled upon various proposed modifications to the 2006 Protective Order in the twelve consolidated 2010 cases. Judge Moran entered the governing protective in 2005, and it has stood since with some revisions. The key rulings included:
The Court denied various proposals to limit plaintiff Trading Technologies’ (“TT”) in-house counsel Steve Borsand’s access to technical documents. While there was some risk of inadvertent disclosure because Borsand is involved in strategic decisions as to the scope of patent protection, the risk was small compared to the harm TT would suffer if it lost Borsand, who had been active in these litigations since 2003.
The Court denied efforts to expand the scope of the patent prosecution bar, limiting counsel from prosecuting related patents for a year after the litigation ended. Defendants’ proposed expansion would have limited counsel from prosecuting in completely unrelated areas of trading software technologies. And the current bar balanced protecting the parties against the livelihood of counsel well.
The Court denied to add an additional level of protection for source code or to add additional protections for source code. The Court characterized the proposed protections as “elaborate,” “extensive” and “labyrinthian.”
The Court held that co-defendants should produce their confidential information to each other. To do otherwise, would limit the value of the case consolidation. And it was unnecessary to limit production because the Protective Order provided sufficient protections for the co-defendants just as it did for information exchanged between TT and a defendant.
Parties were allowed to add additional in-house counsel to the Protective Order, so long as they met the same criteria that Borsand met for TT.
The Court modified the Protective Order to include a specific method for challenging confidentiality designations made pursuant to the Protective Order.

Continue Reading Trading Technologies: Court Maintains Existing Protective Order

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. Speed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Sep. 8, 2010) (Schenkier, Mag. J.).
Judge Schenkier recommended denying plaintiff Trading Technologies’ (“TT”) motion to enforce the final judgment and for sanctions. The Court also recommended correcting the final judgment to reflect the jury verdict and the remitted damages award. A jury previously awarded TT $3.5M in damages and found defendant’s infringement willful. The Court later overturned the willfulness finding and ordered a remittitur of damages to $2.5M, which TT accepted. The Court then granted a permanent injunction and entered a final judgment, but that judgment did not reflect the damages award.
Defendant argued that, despite the jury award and remittitur, there was no damages award because it was not reflected in the final judgment and after the Federal Circuit had decided to appeal it was too late to revise the final judgment.
The Court agreed that the first judgment should have included the award, but not that it was too late to fix it. The Court noted that the most likely explanation for the omission was “the fallibility of human beings (judges included).” The Court also noted that TT should have sought to correct the final judgment immediately. But despite the imprecise judgment, the Federal Circuit ruled upon several issues related to the jury verdict, although not the award itself. And neither TT nor defendants disputed the fact or the amount of the damages award. Based upon those facts, the Court recommended that revising the final judgment to reflect the award would merely “correct a clerical mistake or a mistake arising from oversight or omission” pursuant to Fed. R. Civ. P. 60(a). Finally, the Court recognized TT’s frustration over not having received payment 34 months after the jury verdict and 6 months after the Federal Circuit’s decision. But the Court recommended not awarding TT its fees because TT’s failure to promptly get the judgment corrected was the only reason there was a delay in paying the judgment.

Continue Reading Trading Technologies: Court Reconnect Altering Judgment to Reflect Jury Award

Trading Techs. Int’l, Inc. v. GL Consultants, Inc., No. 05 C 4120 & 5164, Slip Op. (N.D. Ill. Oct. 20, 2010) (Schenkier, Mag. J.).
Judge Schenkier denied plaintiff Trading Technologies’ (“TT”) motion for jurisdictional discovery as moot because defendant GL Consultants withdrew its motion to dismiss. The Court also set an abbreviated process for filing the pending motion for a protective order. Click here for the procedures required of the parties before filing a discovery motion.

Continue Reading Trading Technologies: No Need for Jurisdictional Discovery Because Defendant Withdrew Its Motion to Dismiss

Trading Techs. Int’l, Inc. v. GL Consultants, Inc., No. 05 C 4120 & 5164, Slip Op. (N.D. Ill. Oct. 20, 2010) (Schenkier, Mag. J.).
Judge Schenkier set without the following procedures the parties were required to follow before filing discovery motions with the Court, beyond the standard Local Rule 37.2 meet and confer requirement:
Moving party must send opposing counsel a letter setting forth with specificity the relief it was seeking and the basis for the argument, including citing authority;
Opposing counsel has seven days to respond to the letter in writing with similar specificity, including any areas of agreement;
Within five days of opposing counsel’s letter, the parties must have a face-to-face Local Rule 37.2 meet and confer including counsel with full authority to resolve the dispute;
The parties then have five days to prepare a joint statement of the results of the meet and confer not to exceed twenty-five pages; and
The moving party then has five days to file a motion, without a supporting brief, not to exceed five pages.

Continue Reading Trading Technologies: Court Requires Cooperation & Live Meetings Before Discovery Motion

The Intellectual Property Law Association of Chicago will be holding its annual Patent Law Symposium October 1, 2010 beginning at 8:45 am at the Union League Club of Chicago. Presentations and panels include:
• Life Under the N.D. of Illinois Local Patent Rules and Jury Instructions — Northern District of Illinois Chief Judge, Presiding Magistrate Judge Sidney Schenkier and Allan Sternstein of Dykema Gossett
• Recent Developments In IP Law: The Year In Review — Edward Manzo of Husch Blackwell
• Mock Inventor Deposition — Timothy Delaney of Brinks Hofer Gilson & Lione and Paul Vickrey of Niro, Haller & Niro
• Best Practices: Attorney-Client Privilege and Ethical Considerations in IP Transactions — Glen Belvis of Foroenergy
• Reexamination: Ex Parte and Inter Partes — Janet Garetto of Nixon Peabody (moderator), Joseph Berghammer of Banner & Witcoff and Jessica Harrison, PTO’s Central Reexamination Unit
• Patent Damages — Garret Leach of Kirkland & Ellis and Raymond Sims, Vice-President of CRA International
• Common Mistakes in Briefs and Arguments before the Federal Circuit and How to Avoid Them — Olivia Luk of Jenner & Block (moderator), the Federal Circuit’s Chief Judge Randall Rader, John Whealan, Dean at the George Washington University Law School, and Emily Johnson, Federal Circuit Law Clerk
The Symposium schedule is here. A cocktail reception will take place following the Symposium. Register here, $275 for members and $425 for non-members. Following the program, IPLAC will host its annual judges dinner with keynote speech by Judge Rader. Click here for registration information cost for members and non-members is $150.

Continue Reading CLE: IPLAC Patent Symposium & Judges Dinner

Rosenthal Collins Group, LLC v. Trading Techs. Int’l, Inc., No. 05 C 4088, Min. Order (N.D. Ill. Feb. 2, 2009) (Moran, Sen. J.).*
In this pair of entries, Judge Moran denied plaintiff Trading Technologies’ motions for fees and costs related to a discovery motion and referred another fees motion to Magistrate Judge Schenkier. In the first entry, the Court noted that it was time to end “unnecessary [discovery] battles” in the case and that it might not be as forgiving with the next fees motion. In the other entry, the Court transferred a fees motion to Judge Schenkier, but questioned how “a single discovery dispute could blossom into a claim for over $300,000.
* Click here to read much more about this case and the related cases in the Blog’s archives.

Continue Reading Court Warns Parties That Future Fee Motions May be Granted

The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project. The Northern District was heavily represented on the Commission. The following Northern District Judges were members of the Commission: Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel. The Commission recently published its report — click here to read it. The report describes a two phase analysis. In the first phase, district judges tested the following seven ABA Principles:
1. Twelve-Person Juries;
2. Jury Selection Questionnaires;
3. Preliminary Substantive Jury Instructions;
4. Trial Time Limits;
5. Juror Questions;
6. Interim Trial Statements by Counsel; and
7. Enhanced Jury Deliberations.
Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested. Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures. Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles. Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:
1. Juror Questions;
2. Interim Trial Statements by Counsel;
3. Twelve-Person Juries; and
4. Preliminary Substantive Jury Instructions.
These Principles were chosen because of Phase One popularity (78% of jurors reported that being able to ask questions increased their satisfaction with the process) and because of a desire to study the Principles more. Click here for the Phase Two manual.
In Phase Two, 108 jurors from 12 trials employing one or more of the Phase Two Principles filled out questionnaires. In addition, 12 attorneys and 4 district judges that participated also filled out questionnaires. The results are interesting, but more importantly create the opportunity to powerfully impact the trial system across the Seventh Circuit in ways that benefit all of the stakeholders in the trial process — the litigants, the jurors, the judge and the judge’s chambers, and the litigators.
All four of the Phase Two Principles showed significant benefits to the trial process. 83% of jurors reported an increased understanding of the facts when allowed to ask written questions through a judge — the questions were reworded to meet evidentiary rules. And 75% of judges and 65% of attorneys thought the questions benefited jurors. Similarly, preliminary substantive jury instructions were found to improve trials by jurors (80%), judges (85%) and attorneys (70%). And the same was true for interim statements to the jury — jurors (80%) and judges (85%). Finally, twelve-person juries were found not to harm efficiency, while increasing juror diversity.
Each of the four Phase Two Principles, as well as several of the additional three Phase One Principles deserve more attention and analysis. So, over the next several weeks I will provide follow up posts discussing the findings of those Principles in greater detail. I will start with the idea of juror questions, which I find particularly important, later this week or early next.

Continue Reading Seventh Circuit American Jury Project

The Northern District of Illinois and Chicago’s Federal Bar Association chapter are hosting their Ninth Annual Awards for Excellence in Pro Bono and Public Interest Service awards program this Tuesday, May 13 beginning at 3:30 pm in the James Benton Parsons Memorial Courtroom (2525) of the Dirksen United States Courthouse at 219 South Dearborn Street. The program is open to everyone and is free of charge.
The keynote speaker will be William Neukom, the President of the ABA and partner in K&L Gates. Prior to his private practice, Neukom was executive vice president of Law and Corporate Affairs for
Microsoft, where he managed Microsoft’s legal, government affairs and philanthropic
Seven “Awards for Excellence in Pro Bono and Public Interest Service” and one “Special
Recognition Award for Public Interest Service” will be presented to the following Chicago-area lawyers for their pro bono and public interest work before the Northern District:
Sara C. Arroyo and Rosa M. Tumialán, of Dykema Gossett PLLC (presented by the Judge Coar);
Anthony J. Masciopinto, of Kulwin, Masciopinto & Kulwin, LLP (presented by Judge Manning);
Myron Mackoff, of Richardson & Mackoff (presented by the Chief Judge Holderman and Magistrate Judge Valdez);
Joshua D. Lee and Amy M. Rubenstein, of Schiff Hardin LLP (presented by the
Judge Brown);
Catherine Caporusso and Margot Klein, of the Federal District Court’s Self-Help Assistance Program (presented by Judge Hibbler);
David A. Gordon, Michael B. Nadler, and Kristen R. Seeger, of Sidley Austin LLP (presented
by Magistrate Judge Schenkier);
Lisa R. Kane, of Lisa Kane & Associates, PC (presented by Chief Judge Holderman); and
Richard J. Gonzales, Clinical Professor of Law, Chicago-Kent (presented by Chief Judge Holderman).

Continue Reading Northern District’s Ninth Annual Pro Bono & Public Interest Awards

The Northern District has posted the Seventh Circuit’s new proposed pattern jury instructions for patent cases on its website — click here for a copy. The instructions include all of the recent revisions to the patent laws, including KSR and Seagate. The Seventh Circuit requested comments on the instructions be sent to:
Chief Judge Robert L. Miller, Jr.
325 Robert A. Grant Federal Building
204 S. Main St.
South Bend, IN 46601
Comments will be accepted until April 1st. Also, below is my list of IP jury instructions by Northern District judge, I am sure we will start to see some new ones soon in light of the turbulent 18 months patent law has had:

Continue Reading New Patent Pattern Jury Instructions