Willfulness

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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

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.
*You can download this opinion here and you can read much more about this case and related cases in the Blog’s archives.
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Continue Reading Court Refuses to Bifurcate Willfulness and Damages