Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 1 of 16 PageID #:48648
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`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.,
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`Plaintiff
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`v.
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`CQG, INC., and CQGT, LLC,
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`Defendants.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Judge Sharon Johnson Coleman
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`Civil Action No. 05 C 4811
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`TT'S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER
` OF LAW ON INDIRECT INFRINGEMENT OR ALTERNATIVELY
`FOR NEW TRIAL PURSUANT TO RULE 59
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`I.
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`Introduction
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`The jury found that Trading Technologies International, Inc. ("TT") had not established
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`that CQG induced infringement of the patents in suit. TT submits that this finding is inconsistent
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`with the record at trial. Therefore, pursuant to Rule 50(b) of the Federal Rules of Civil
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`Procedure, TT herein moves for judgment as a matter of law on the issue of inducement of
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`infringement or alternatively for a new trial under Rule 59. Similarly, in an order of March 13,
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`the Court held that TT could not prove contributory infringement. TT asserts that this finding
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`was based on an errant interpretation of the law and facts. Therefore, TT also moves for a new
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`trial pursuant to Rule 59 on the issue of contributory infringement.
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`1
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`TDA 1028
`TD Ameritrade v. TT
`CBM2014-00133
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 2 of 16 PageID #:48649
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`II.
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`Legal Standards
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`Judgment as a matter of law is appropriate under Rule 50(b) if, in light of the entire
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`record, no reasonable jury could find to the contrary. McMillan v. Stoll, No. 09 C 1622, 2012
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`WL 707117 at *1 (N.D. Ill. Mar. 5, 2012)1 (quoting Schandelmeier-Bartels v. Chicago Park
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`Dist., 634 F.3d 372, 376 (7th Cir. 2011)).
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`Rule 59 of the Federal Rules of Civil Procedure permits a court to order a new trial "after
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`a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in
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`federal court." Fed.R.Civ.P. 59(a)(1). In deciding whether to grant a new trial, district courts
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`determine "whether the verdict was against the manifest weight of the evidence, the damages are
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`excessive, or if for other reasons the trial was not fair to the moving party." Fujitsu Ltd. v.
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`Tellabs Operations, Inc., 08 C 3379, 2013 WL 268607, at *4 (N.D. Ill. Jan. 24, 2013) (quoting
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`Frizzell v. Szabo, 647 F.3d 698, 702 (7th Cir.2011)); see also Shaps v. Provident Life & Accident
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`Ins. Co., 244 F.3d 876, 885 (11th Cir.2001) (noting that a new trial may be ordered "when the
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`interests of substantial justice are at stake").
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`Among other reasons, a court may grant a new trial because "a material issue was
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`improperly . . . withdrawn from a jury." DeWitt v. New York State Hous. Fin. Agency, 97 CIV.
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`4651 SAS, 1999 WL 672560, at *1 (S.D.N.Y. Aug. 26, 1999) (noting that "[i]n evaluating a Rule
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`59 motion, the trial judge's duty is essentially to see that there is no miscarriage of justice"
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`(internal quotations omitted)); Am. HealthNet, Inc. v. Westside Community Hosp., Inc., 8:04CV9,
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`2006 WL 3063481, at *1 (D. Neb. Oct. 24, 2006).
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`Rule 59 also permits the Court to "alter or amend a judgment." Fed.R.Civ.P. 59(e). This
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`allows the Court to correct manifest errors of law or fact or consider newly discovered material
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`evidence. Black & Decker Inc. v. Robert Bosch Tool Corp., 04 C 7955, 2006 WL 3783006, at *2
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`1 Unreported cases are attached as Exhibit S.
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`2
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 3 of 16 PageID #:48650
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`(N.D. Ill. Dec. 22, 2006) (citing County of McHenry v. Insurance Co. of the West, 438 F.3d 813,
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`819 (7th Cir.2006)). A manifest error of law is the "disregard, misapplication, or failure to
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`recognize controlling precedent." Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th
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`Cir.2000). The district court may review its prior judgment under Rule 59(e) to determine
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`whether "'there exists a manifest error of law or fact so as to enable the court to correct its own
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`errors and thus avoid unnecessary appellate procedures.'" Pet Prod. Innovations, LLC v. Paw
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`Wash, L.L.C., 11 C 7182, 2012 WL 4461765, at *2 (N.D. Ill. Sept. 25, 2012) (quoting Divane v.
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`Krull Elec. Co., Inc., 194 F.3d 845, 847 (7th Cir.1999)).
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`With respect to each of the issues addressed herein, the evidence conclusively establishes
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`that Plaintiff is entitled to judgement as a matter of law or alternatively a new trial.
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`III.
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`Induced Infringement
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`Although the jury correctly found that CQG directly infringed the patents-in-suit, the jury
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`erred by finding that TT had not proven by a preponderance of the evidence that CQG induced
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`infringement of the patents in suit. This Court should set aside the latter finding and enter
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`judgment as a matter of law that CQG has committed acts of indirect infringement, namely
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`induced infringement. Such judgment is warranted because TT has definitively established,
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`beyond the requisite preponderance of the evidence, each element necessary for liability under
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`35 U.S.C. §§ 271(b)2. Indeed, the trial record reveals that there is little or no evidence to the
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`contrary.
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`Liability for induced infringement requires evidence that (1) CQG knew, or was willfully
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`blind to the fact, that performing certain actions would infringe at least one claim of the TT
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`patents, (2) CQG took affirmative steps to induce others to perform these actions, and (3) others
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`2 35 U.S.C. § 271 (b) provides that "[w]hoever actively induces infringement of a patent shall be liable as
`an infringer."
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`3
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 4 of 16 PageID #:48651
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`did in fact perform these actions. Cascades Computer Innovation, LLC v. Samsung Electronics
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`Co. Ltd., 2015 WL 94117 (N.D. Ill. 2015); Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct.
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`2060, 2065 (2011); DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006). TT has
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`shown by much more than a preponderance of the evidence that each of these elements is met in
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`the present case.
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`A.
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`CQG Knew That Performing Certain Actions Would Infringe
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`TT has established this first element through at least the testimony of Mr. Shterk, Mr.
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`Korepanov, Mr. Mather, and Mr. Schroeter. Messrs. Shterk, Mather, and Schroeter each testified
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`that they were aware of the patents-in-suit before and after their issuance. Ex. A, Trial Tr.
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`1516:19-1518:25 (Mr. Shterk); 1662:25-1664:15 (Mr. Mather); 1670:6-1672:12 (Mr. Mather);
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`2238:3-2239:25, 2241:10-2242:4 (Mr. Schroeter). Further, Messrs. Mather and Schroeter
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`testified that they were monitoring the proceedings related to the patents-in-suit throughout the
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`eSpeed litigation, and particularly through claim construction proceedings. Id. at 1670:6-20 (Mr.
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`Mather); 2251:23-2253:18 (Mr. Schroeter).
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`Additionally, CQG was aware what functionality in its DOMTrader was infringing.
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`Indeed, the testimony of Mr. Shterk and Mr. Korepanov establishes that they were both aware
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`that the use of price selection in the Browse Prices Mode would result in "static" price levels,
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`thereby infringing the TT patents. See id. 1476-78, 1547-49, 1557 (Shterk); Ex. B, PTX 2871 at
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`p. 9-10 (Korepanov); Ex. C, PTX 169 at p. 4 (No re-centering if price selected); Ex. D, PTX 170
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`at p. 3 ("if user selects the top most visible price (or bottom) the price grid will not be jumping
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`on him anymore"); Ex. E, PTX 188 ("Now we can select the price, the grid freezes"); Ex. F, PTX
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`189 at p. 3 ("When have we made the change that once the user selects the prices on responsive
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`4
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 5 of 16 PageID #:48652
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`dt the grid would stop moving completely"); and Ex. G, PTX 341 at p. 2 (when price selected
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`"the market will just go off the grid and grid remains static").
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`On this topic, TT offered at trial Exhibit PTX 336 (attached as Ex. H) as evidence of
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`CQG's knowledge that their product infringed. The Court sustained an objection based on Rule
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`408. Ex. A at 2224:4-2230:19. TT submits that the exclusion of the evidence was inappropriate
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`because, as explained in court, TT was using the document for a purpose not barred by Rule 408,
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`i.e., to prove CQG's knowledge. Had the document been admitted into evidence it would have
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`provided further evidence that CQG was aware that its product operated in a manner that
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`infringed the patents in suit. Indeed, in PTX 336, Mr. Fischer concludes that TT's position is
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`"fairly persuasive" and agrees that TT's "argument on past damages liability is stronger than we
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`have thought." Ex. H.
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`Further, Mr. Shterk, Mr. Korepanov and Mr. Katin all testified to CQG's knowledge that
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`the accused products included functionality to disable the appearance of a market window (at
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`trial this was referred to as the Market Window Disabled Mode). Ex. A at 1481-82 (Shterk),
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`2187 (Katin); Ex. B at 14, 18, 23, and 27 (Korepanov). See also Ex. I, PTX 135 at p. 63 (.ini file
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`setting set forth); Ex. J, PTX 175 at p. 3 (set up to resize the market window); Ex. K, PTX 190
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`("market window is not shown here is because its height is higher than the DOM grid height");
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`Ex. L, PTX 191 at p. 19 (setting forth steps to resize the market window); and Ex. M, PTX 194
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`at p. 4 ("market window does not show up if its higher than the DOMTrader height'). Once the
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`market window is disabled and a price is selected, the Market Window Disabled Mode functions
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`exactly as described in patents-in-suit. Ex. A at 640:17–19; 642:18-21; 643:22-644:19
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`(Thomas); Id. at 761:1-762:25 (Burns). CQG eventually removed this functionality from the
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`products because CQG personnel, including Mr. Shterk, considered it to infringe the TT patents.
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`5
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 6 of 16 PageID #:48653
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`Id. (Shterk) at 1483:19-1484:9, 1558:20-1559:1, 1569:15-1570:9; Ex. M. Notably, these are the
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`same functionalities that TT accused of infringement and that the jury found infringing.
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`CQG may rely on the fact that they received an opinion of counsel in an effort to say that
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`they were unaware of the infringement. However, the opinion of counsel cannot save CQG in
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`this regard. Initially, the written opinions never address the functionality of the DOMTrader that
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`was at issue in this case. The opinions never explain how there is no infringement when prices
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`in the DOMTrader are static and do not move in response to a change in the inside market.
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`Indeed, the opinion does not discuss this circumstance at all. Importantly, as shown above, CQG
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`was aware that the DOMTrader functioned in this way. Yet CQG never obtained a supplemental
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`opinion of counsel to address these issues, nor to address functionality added after the receipt of
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`the opinions. For example, the Price Hold function was added to the product well after the
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`written opinions were received. There is no opinion addressing the impact of the patents in suit
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`on this functionality. Rather, CQG moved forward in total disregard of the patents. Blindly
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`relying upon an opinion that never addressed issues CQG knew existed cannot excuse
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`inducement activities.
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`It is undisputed that CQG was aware of the patents-in-suit since at least 2003. And TT
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`has clearly established that CQG was aware of the particular functionality that it knew or should
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`have known would infringe the patents-in-suit.
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`The accused products also include the "Price Hold" or "Hover" feature. CQG included
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`this feature in its products to ensure that a trader is guaranteed his or her price. See Ex. A at
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`1681-82 (Mather). Of course, this is one of the principal goals of the invention claimed in the
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`patents in suit. Price Hold works by locking in a specified price for an order by hovering the
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`mouse cursor over either a buy or sell region adjacent to that price and maintaining that hover
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`6
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 7 of 16 PageID #:48654
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`until an order is sent. See id. at 655:15-656:1; 657:2-659:19 (Thomas); Ex. N, PTX 157 ("When
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`I hover over a price the price becomes static"). In other words, Price Hold makes the price static,
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`i.e., the ability of the trader to place the order at his price will not change regardless of what
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`happens with the inside market. While the Court found that collateral estoppel barred TT's effort
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`to pursue this functionality as an infringement under the doctrine of equivalents,3 it is additional
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`evidence of CQG's knowledge of the infringement resulting from the use of its product.
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`B.
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`CQG Took Affirmative Steps to Induce Infringing Actions
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`Regarding the second element, it is also undisputed that CQG provides the allegedly-
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`infringing software to customers. Numerous witnesses established that CQG sells the software,
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`including witnesses that testified that they are current CQG customers. Ex. A at 392:17-22 (Mr.
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`McDonnell); 692:3-10, 698:7-699:15 (Thomas); 1513:24-1514:2 (Shterk); 1203 (Crouch); 1854-
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`55 (Veselica). Further, it is undisputed that CQG provides the mechanism by which customers
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`obtain the allegedly-infringing software, i.e., CQG provides a website and users download the
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`software from that website. Id. at 1873:18-25 (Dr. Mellor). The creation and use of a computer
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`readable medium having software with the infringing functionality is an infringement of the
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`CRM claims (claim 8 of the '132 patent and claim 27 of the '403 patent). In selling or licensing
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`the software, CQG induced its customers to copy the software onto a computer readable medium.
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`In doing so, CQG took affirmative steps to induce infringement.
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`The evidence also establishes the second element with respect to the method claims. In
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`particular, the testimony of at least Messrs. Shterk, Katin, Prince, and Mellor illustrate that CQG
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`instructed customers to operate the software in an infringing manner. For instance, Mr. Shterk
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`testified that CQG provided user guides that explained how to use the product, which noted, inter
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`alia, specifically how the various modes of the DOMTrader operate. Id. at 1540:10-1541:21,
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`3 In a separate motion TT is seeking a new trial on the doctrine of equivalents issue.
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`7
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 8 of 16 PageID #:48655
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`1543:15-17 (Mr. Shterk). For example, CQG identified various modes of product operation to
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`customers, including "Place Order Mode" (also known as Browse Prices Mode) which occurs
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`"when the Price column is active and selected…" and also told customers that "It is important to
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`pay attention to the mode your DOMTrader is in when you place an order because it affects how
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`an order is filled." Ex. O, PTX 31 at p. 79 (CQG User Guide, Order Execution). Indeed, CQG
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`was well aware that in the Browse Prices mode, which occurs when a price is selected, the price
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`ladder becomes static. See Ex. D ("when user selects the price the ladder will not move
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`anymore"); Ex. E ("grid freezes" with price selection); and Ex. B at 9-10 (Korepanov). In fact,
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`CQG personnel specifically advised clients to use price selection to keep the price ladder from
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`jumping. Id
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`Moreover, Mr. Katin testified that some versions of the CQG software enabled a user to
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`alter an .ini file, thereby putting the software into a mode (i.e., Market Window Disabled Mode)
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`that CQG considered (and TT alleges) infringed. Ex. A at 2194:5-23 (Katin). It was also clear
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`that CQG provided developers with information on how to alter the .ini file. Id. at 1557 (Shterk);
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`Ex. I. And Mr. Prince testified that, as a CQG employee, he modified .ini files for customers.
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`Ex. A at 2003:12-2004:2 (Prince). Mr. Prince also testified that he described the effect of price
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`selection and its ability to lock the price grid. Id. at 1994-1996 (Prince). Indeed, he testified he
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`saw customers using price selection. Id at 2001:8-16. Mr. Prince further testified about
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`customers using Price Hold or Hover. Id. at 2002:23-2002:11; 2006:22-2007:7 (Prince). And
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`the use of Price Hold is further disclosed in the CQG manuals. See id. at 1540 (Shterk).
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`Accordingly, the evidence establishes that CQG took affirmative steps to induce others to
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`perform the actions CQG knew would infringe the patents-in-suit, including providing customers
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`8
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 9 of 16 PageID #:48656
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`with user manuals as well as in-person explanations and demonstrations of the infringing
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`functionality.
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`C.
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`Others Actually Infringed
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`As noted above, it is undisputed that CQG customers created and used a computer
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`readable medium containing the infringing software. This "making" and "using" represents a
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`direct infringement of the CRM claims of the patents in suit. Thus, it is undisputed that
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`customers of CQG directly infringed the TT patents.
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`In addition, the evidence supports the conclusion that customers used the product in
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`modes that infringe the method claims. There is no dispute that customers use the price selection
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`functionality in the accused product to enter orders. See, e.g., Ex. A at 2001:8-16 (Prince). For
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`instance, both damages experts relied upon the CQG Pivot Table, which illustrates that hundreds
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`of millions of transactions have been entered using the infringing software. Id. at 889:20-890:20
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`(Mr. Sims); 2035:8-15 (Mr. Peterson). This is further supported by the Customer Experience
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`logs created by CQG. These logs demonstrate that customers used the infringing functionality
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`such as price selection, i.e., the Browse Prices Mode. Id. at 2216:9-2217:11 (Katin). While
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`CQG failed to preserve the Customer Experience logs from 2008 through 2012, this Court's
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`adverse inference instruction4 permits the finding of an even greater number of infringing uses
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`by end-users. Accordingly, TT has introduced more than sufficient evidence of this third
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`factor—actual use of the product in allegedly-infringing modes.
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`4 The Court's adverse instruction is as follows: "There was evidence that was requested from TT -- from
`CQG by TT, and at this time you are instructed that CQG failed to preserve the information from a data
`set called the customer experience logs. These logs contained information about both the disabling of
`confirmation windows and the selection or lack of a selection of a price by users in the accused products.
`Due to the failure to preserve by CQG, you may infer that the data would have been unfavorable to
`CQG's positions and favorable to TT's positions regarding the disabling of confirmation windows and the
`selection or lack of selection of prices by users in this case." Id. at 2008:6-16.
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`9
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 10 of 16 PageID #:48657
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`In sum, TT has definitively established each element necessary for liability for induced
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`infringement. There is no evidence to the contrary sufficient to allow a reasonable jury to find
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`no inducement.5 Certainly, there is no denial that CQG customers utilized price selection and
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`price hold. As such, this Court should enter judgment as a matter of law that CQG has
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`committed acts of induced indirect infringement. Alternatively, the Court should grant a new
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`trial on the issue so the evidence can be properly evaluated.
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`IV. Contributory Infringement
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`In its order of March 13, 2015, the Court took the issue of contributory infringement from
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`the jury and held that TT could not make a case for contributory infringement. TT respectfully
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`submits that the Court's ruling was in error and pursuant to Rule 59 requests a new trial on this
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`issue.
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`35 U.S.C §271(c) states:
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`Whoever offers to sell or sells with in the United States or imports into the United States
`a component of a patented machine, manufacture , combination or composition or a
`material or apparatus for use in practicing a patented process, constituting a material part
`of the invention, knowing the same to be especially made or especially adapted for use in
`an infringement of such patent and not a staple or commodity of commerce suitable for
`substantial non-infringing use, shall be liable as a contributory infringer.
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`To establish contributory infringement in the present case, TT must show the following elements
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`by a preponderance of the evidence: (1) a sale, offer to sell within the United States, or
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`importation into the United States of a component of a computer readable medium (i.e.,
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`software) with the characteristics of the claims, or that can be used in a patented process; (2) that
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`the component of the computer readable medium is not a staple article of commerce with a
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`5 CQG spent a substantial amount of time and effort trying to demonstrate that its employees did not teach
`and were unaware of any customers that resized the market window to disable its appearance. The
`evidence in this case is, however, directly to the contrary. Indeed, CQG made a video showing the market
`window resizing and shared that video with several traders. See Ex. A at 1858 (Veselica); 1206-07
`(Crouch). They may have done this for purposes of the litigation, but the fact remains that CQG taught
`several different individuals how to utilize this functionality.
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`10
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 11 of 16 PageID #:48658
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`substantial, non-infringing use; (3) that the component of the computer readable medium
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`constitutes a material part of the invention; (4) that CQG was aware of the '132 or '304 patents;
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`and (5) that there is direct infringement of the claim. See Toshiba Corp. v. Imation Corp., 681
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`F.3d 1358, 1362 (Fed. Cir. 2012); Spansion, Inc. v. Int'l Trade Comm'n, 629 F.3d 1331, 1353
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`(Fed. Cir. 2010); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1326 (Fed. Cir. 2010).
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`A. Sale or Offer for Sale In the United States
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`It is beyond dispute that CQG supplies to its customers the DOMTrader and ChartTrader
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`windows in the United States. Damages experts for both sides have acknowledged that the
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`software is used by customers in the United States. See, e.g., Ex. A at 897-901(Sims), 2035:8-15
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`(Peterson). These uses are confirmed by the CQG Pivot Table. Moreover, Mr. Vancil, CQG's
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`vice president, testified about the sale/licensing of the CQG software in and from the United
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`States. Ex. P, PTX 2868 at 2-3. From this evidence only one conclusion can be reached—CQG
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`has sold the accused products in the United States.
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`B. The DOMTrader and ChartTrader Are a Material Part of the Invention
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`Both DOMTrader and ChartTrader, when fixed in a computer readable medium, have the
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`attributes of the CRM claims and can be operated in at least one infringing mode of operation
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`that infringes the method claims. The Responsive Scale DOMTrader can be operated in the
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`Browse Prices Mode or the Market Window Disabled Mode.6 The Responsive Scale
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`ChartTrader can be operated in the Regular Scroll Mode. Each of these is a basis for TT's
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`assertion of literal infringement. See, e.g., Thomas Testimony re '304 patent Claim 1 (Ex. A at
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`683:21-689:16), Claim 7 (Id. at 690:3-12), Claim 27 (Id. at 691:23-693:21); and Thomas
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`Testimony re '132 patent Claim 1 (Id. at 693:22- 695:2), Claim 7 (Id. at 695:20-696:10), Claim
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`6 The Responsive Scale, Market Mode with Price Hold functionality is implicated by equivalents, and, if
`the Court grants TT's Rule 59 motion relating to PHE, then this mode should also be considered under the
`contributory infringement theory.
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`11
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 12 of 16 PageID #:48659
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`24 (Id. at 696:11-17), Claim 25 (Id. at 696:18-23), Claim 8 (Id. at 696:24-697:4), Claim 34 (Id. at
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`697:8-17), Claim 35 (Id. at 697:18-24). The DOMTrader and ChartTrader enable a trader to
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`practice the claimed invention. As a result, there can be no dispute that they are a material part
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`of the invention.
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`C. CQG Was Aware of the Patents In Suit
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`It is also undisputed that CQG was aware of the patents in suit. Ex. A at 1662:25-
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`1664:15 (Mather); 1516:19-1518:25 (Shterk); and 2238:3-2239:25, 2241:10-2242:4 (Schroeter).
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`Indeed, CQG was aware of the patent applications before they even issued and they recognized
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`them as a potential problem for CQG. See, e.g., Ex. Q, PTX 280 ("This is a very serious threat to
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`us if they are granted"); Ex. R, PTX187 at p. 24 (functionality removed because of the TT
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`patents); and Ex. F at p. 2 ("we're giving argument for TT since upon single click the price grid
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`becomes static"). The "awareness" element is clearly met.
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`D. There is Direct infringement of the Patents-In-Suit
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`As noted above, the loading of the software on a customer's computer constitutes direct
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`infringement of the CRM claims, and the use of the software in an infringing mode is a direct
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`infringement of the method claims. The evidence establishes that CQG's customers used the
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`infringing features in the accused software. See, supra at n. 4 (Adverse Inference on Customer
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`Experience Logs); Ex. A (Prince), 2001:8-2002:6 (indicating he used price selection and hover
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`functionality in the responsive DOM and saw other people use that functionality "quite often"),
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`2002:23-2003:2 (stating he described hover functionality to customers of CQG and they actually
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`used that functionality), 2003:15-2004:24 (testifying that he altered .ini files to change the
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`default number of rows for customers to meet their preferences); Id. (Shterk) 1476:14-1478:20
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`(email chain discussing customer issue, recommendation to use price select and results of use in
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`12
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 13 of 16 PageID #:48660
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`that mode). Moreover, Mr. Thomas testified that CQG contributed to direct infringement by
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`providing customers with the software. Id. (Thomas) at 700:12-15.
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`E. DOMTrader and ChartTrader Are Non-Staple Articles of Commerce Without
`Substantial Non-Infringing Uses
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`It is also undisputed by CQG that DOMTrader (Browse Prices Mode) and ChartTrader
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`(Regular Scroll Mode) are not staple articles of commerce. See, e.g., Dkt 1179. Both of these
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`software programs are written for a single purposes—electronic trading. They are not intended
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`for, designed for, or capable of other significant uses. There is no viable argument that
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`DOMTrader and ChartTrader are staple articles of commerce.
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`Thus, the only real issue with respect to contributory infringement is whether
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`DOMTrader (Browse Prices Mode) and ChartTrader (Regular Scroll Mode) are capable of
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`substantial non-infringing uses. And the evidence adduced at trial proves that they are not. The
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`proper analysis of this issue begins by determining whether the specific hardware and software
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`accused of infringement are "separate and distinct" from a larger product. Fujitsu Ltd. v. LG
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`Elecs., Inc., 620 F.3d 1321, 1330-1331 (Fed. Cir. 2010) (citing i4i Partnership v. Microsoft
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`Corp., 598 F.3d 831, 849 (Fed. Cir. 2010)). For example, in i4i Partnership, Microsoft Word
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`was held to be the larger product and an XML Editor within Word was held to be "separate and
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`distinct" from all other functions of Word such that contributory infringement was analyzed
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`based upon the separable feature, rather than the entire product. Id. Likewise, in Fujitsu, the
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`Federal Circuit treated the specific hardware and software that performs the infringing
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`fragmentation processes as separate and distinct features. Fujitsu Ltd., 620 F.3d at 1331.
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`In the present case, the Browse Prices Mode (activated by price selection) in the
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`Responsive Scale of the DOMTrader and the Regular Scroll mode of the ChartTrader are
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`separate and distinct modes within CQG's larger Integrated Client ("IC") platform. These modes
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 14 of 16 PageID #:48661
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`function independently of the other modes. They do not rely on the other aspects of DOMTrader
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`or ChartTrader for their functionality. It would be error to focus on other modes as CQG
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`proposes. Indeed, CQG's literature recognizes the distinction between modes and tells the user
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`that it is important that the pay attention to what mode they are in. Ex. O at p. 79. Therefore,
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`they are properly viewed as separate and distinct from the other functions of the DOMTrader or
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`the IC for purposes of the contributory infringement analysis.
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`Further, in Fujitsu, the Federal Circuit held that it was of no consequence that a user
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`could turn off the infringing features, because "when activated, the product is infringing."
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`Fujitsu Ltd., 620 F.3d at 1331. That court acknowledged that whether a user activates the
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`accused fragmentation functions in the software is relevant to the extent of direct infringement.
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`But it does not establish substantial non-infringing uses, and thus the Fujitsu court ultimately
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`ruled that the fragmentation software does not have substantial non-infringing uses. Id. TT's
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`expert Mr. Thomas provided detailed testimony regarding infringing modes and he also testified
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`regarding the function of CQG's products. Ex. A (Thomas), 617:21-619:1. The testimony
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`demonstrates that the present case is directly analogous to Fujitsu and the same conclusions
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`should be reached.
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`With the absence of a substantial non-infringing uses, TT has established by at least a
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`preponderance of the evidence each of the elements of contributory infringement, and, as a
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`result, CQG's liability for contributory infringement. No reasonable jury could find otherwise.
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`V.
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`Conclusion
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`For the foregoing reasons, TT respectfully requests that the Court grant TT motion for
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`Rule 50(b) or alternative Rule 59 on the issues of inducement of infringement and contributory
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`infringement.
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`14
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 15 of 16 PageID #:48662
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`Date: April 15, 2015
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`Respectfully submitted,
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`By: s/ Brandon J. Kennedy
`Leif R. Sigmond, Jr. (ID No. 6204980)
`(sigmond@mbhb.com)
`Matthew J. Sampson (ID No. 6207606)
`(sampson@mbhb.com)
`S. Richard Carden (ID No. 6269504)
`(carden@mbhb.com)
`Jennifer M. Kurcz (ID No. 6279893)
`(kurcz@mbhb.com)
`Brandon J. Kennedy (ID No. 6306310)
`(kennedy@mbhb.com)
`Cole B. Richter (ID No. 6315686)
`(richter@mbhb.com)
`McDonnell Boehnen Hulbert &
`Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606
`Tel.: (312) 913-0001
`Fax: (312) 913-0002
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`Steven F. Borsand (ID No. 6206597)
`(Steve.Borsand@tradingtechnologies.com)
`Trading Technologies International, Inc.
`222 South Riverside
`Suite 1100
`Chicago, IL 60606
`Tel: (312) 476-1000
`Fax: (312) 476-1182
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`Attorneys for Plaintiff,
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
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`15
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`Case: 1:05-cv-04811 Document #: 1228 Filed: 04/15/15 Page 16 of 16 PageID #:48663
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`CERTIFICATE OF SERVICE
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`I certify that a copy of the foregoing RULE 50(b) MOTION FOR JUDGMENT AS A
`MATTER OF LAW ON INDIRECT INFRINGEMENT OR ALTERNATIVELY FOR NEW
`TRIAL PURSUANT TO RULE 59 was served on April 15, 2015 as follows:
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`Via Filing Via this Court's CM-ECF System, which caused a copy to be served on all
`registered users and Via Email:
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`Counsel for CQG, Inc., and CQGT, LLC:
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`Adam G. Kelly
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`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
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`akelly@loeb.com
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`William Joshua Voller III
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
`wvoller@loeb.com
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`Laura A. Wytsma
`Loeb & Loeb LLP
`10100 Santa Monica Boulevard, Suite 2200
`Los Angeles, CA 90067
`lwytsma@loeb.com
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`s/ Brandon J. Kennedy
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`16
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