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`Case 1:04-cv-05312· Document 963
`
`Filed 09/1212007 Page 1 of 3
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`IN THE UNITED STATES DISTRICf COURT
`FOR THE NORmERN DISTRICf OF ILLINOIS
`EASTERN DMSION
`
`TRAiliNG TECHNOLOGIES
`INTERNATIONAL, INC.,
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`Plaintiff;
`
`vs.
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`)
`)
`)
`)
`)
`)
`)
`eSPEED, INC., eSPEED, INTERNATIONAL,)
`LTD., and ECCO WARE, LTD.,
`)
`)
`)
`
`No. 04 C 5312
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`Defendaats.
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`MEMORANDUM OPINION AND ORDER
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`TT brings this motion in limine to preclude eSpeed from contradicting the court's
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`"single actloa" coastn•ction, requesting that we preclude expert testimony, arg\ling tbat the
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`term "single action" can cover (I) any number of aser actions so loag aa they are performed
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`in a "short period of time"; (ii) the order entJy process of the alleged Tokyo Stock Exchange
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`("TSE") prior art; and (iii) a screen which requires that a u1er click on a screen and move a
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`cursor to dick on a button in a pop-up window to send an order. Essentially, TT argues that
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`a product requiring (1) clicking or double clickioe on au order entry screen; (2) typing a
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`quantity in an order ticket that pops up; and (3) clicking on a send button within the order
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`ticket to send the order cannot come within our construction of "single action order entry
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`region." Therefore, TT coo tends, eSpeed sbould not be able to introduce its arpment at trial.
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`eSpeed fails to respond to the substance ofTT's motion. Rather, eSpeed focuses on the
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`process underlying a patent infringement suit. That process, eSpeed points out, Involves two
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`separate and distinct steps: (1) claim construction (Le., what do the claims mean?); and (2)
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`.. pplying the construed claims to the prior art. eSpeed i1 perfectly right - there are two
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`elements of a patent case, con.stming the pateat and determining whether infringement
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`occurred. Mamman v. Westview ln!!truments, lp£,, 517 U.S. 370, 384 (1996). In fact. the
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`i
`' ..
`·!.
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`TRADING TECH EXHIBIT 2004
`TD Ameritrade v. Trading Technologies
`CBM2014-00131
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`Page 1 of 4
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`Case 1:04-cv-05312 Document 963
`
`Filed 09/12/2007 Page 2 of 3
`
`No.04 C 5312
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`Pagtl
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`Supreme Court supports eSpeed's argument that the first inquiry is a question of law to be
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`determined by the court and the second inquiry is a question of fad to be submitted to a jury.
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`ld. In f•ct, the Federal Cir~uit has guided us. to "provide the jury in a patent case with
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`instrudlons adequate to ensure that the jury fully understands the court's daim construction
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`nllings and what the patentee covered by the claims." Sulzer Textil A. G. v. f.ict~nol N.y., 358
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`F.3d 1356.1366 (Fed.Cir.l004).
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`Although eSpeed torrectly states the pro~ess of a patent infringement trial, we think
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`this presents a spedal circumstance. ln our claim construction ruling, we construed "single
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`action of a user input device" to be "an action by a user within a short period of time that may
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`comprise one or more eUcla of a mouse button or other input device." Tradine Tecbnolodes
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`Int'l. Inc. y. eSpeed. lgc .• 2006 WL 3147697, *8 (N.D.ID.l006) (''Claim Construction"). We
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`went on to explain:" As we have continually noted, however, plaintitl's patents aenerally were
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`written from tbe perspective of the user. Therefore, tbis claim refers to the user~s sinale action,
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`not the adion(s) tbe computer performs to ex~ute the user's command." ld. We made it very
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`clear that, from the perspeetive of the user, a single action had to be just that - a single action.
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`We think it is very elear that a double click, foUowed by entry of a quantity, followed by an
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`' 4enter'' (as described by eSpeed's attorney Mr. Perkins) is not a single action under our
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`construction.
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`While such is generally a decision left to the jury, we pause to recognize the c:ompleDty
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`of this case and the dimculty the jurors will encounter in attempting to keep track of all of the
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`different features and arguments. The parties have no lack of theories, especially when it
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`comes to invalidity and prior art. Therefore, as we are convinced that it would be impossible
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`for a reasonable jury to fmd that the three steps described by eSpeed's attorney could fit into
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`Page 2 of 4
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`Case 1 :04-cv-05312 Document 963
`
`Filed 09/12/2007 Page 3 of 3
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`Nu.04CS31l
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`Pegt3
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`our definition of single action, we grant TI's motion to exc:lude evidence that it does.' Rather
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`than throw a non-starter at the jury or deal with this issue during post-trial motion practi.ee,
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`we exclude the evidence from the start. Althoup our decision is nearly akin to a partial
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`summary judgment nallng, we are convinced that it is correct, it will save preeiOU$ judiClial
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`resourees, and simplify the case for the jury. See C91usi v. C,ybex lnt'l .. lpc., 2007 WL
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`490969, *3 (Fed.Cir.2007) (unpubHshed Federal Circuit opinion finding that district court did
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`not abuse its discretion in grantin& plaintiff's motion In limine to preclude competitor from
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`arguing non-infringement under the reverse dodrine of equ~alents even though it was a "de
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`facto summary judgment"). TT's motion is granted in part.
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`~, lr· . 1001.
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`JAMESiMORAN
`Senior Judge, U.S. District Court
`
`1 We limit our ruling to exclusion of evidence of a prior art "single action" feature that
`requires a double click. entry of a quantity, and an enter by the user. Because of the unusual
`nature of our detennination, we reject IT's request that we go any further. Specifically, we
`reject IT's request that we exclude expert testimony that "single action" can cover a screen
`whlch requires that a user click on a screen and move a cursor to click on a button in a pop-up
`window to send an order. 'IT can argue its case to the jury and we will, per the guidance of the
`Federal Circuit, submit detailed claim construction instructions to the jury.
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`Page 3 of 4
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`

`

`Orp Fonn (OlllOOS)
`
`Filed 09/12/2007 Page 1 of 1
`Case 1 :04-cv-05312 Document 962
`United States District Court, Northern District of Illinois
`
`N•mt of MJ11:1cd .hadJ:t
`or Mallm'lte Jad~
`
`CASE NUMBER
`
`James B. Moran
`04 c 5312
`TRADING TECHNOLOGIES INTERNATIONAL, INC. Vs. ESPEED, INC., et al
`
`DATE
`
`9/12/2007
`
`Sln:l111 Judce If Other
`tblll AISIJbM Jo.
`
`CASE
`TITLE
`
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`Enter Memorandum Opinion And Order. TT's motion in limine to preclude eSpeed from contradicting the
`court's "single action" construction, requesting that we preclude expert testimony, arguing that the tenn
`"single action" can cover (I) any nwnber of user actions so long as they are perfonned in a "short period of
`time" [943) is granted in part.
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`• [For further de1ailsee separate ordcr(s).]
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`Docketint tu mail noticca.
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`Courtroom Deputy I
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`04C53 I 2 TRADING TECHNOLOGIES INTERNATIONAL, INC. Vs. BSPEED, INC., et al
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`Page 1 of I
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