Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 1 of 13 PageID #:48008
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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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`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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`TT’S MOTION FOR JUDGEMENT AS A MATTER OF LAW CONCERNING PHE
`AND INFRINGEMENT UNDER THE DOE AND FOR A NEW TRIAL
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`TDA 1029
`TD Ameritrade v. TT
`CBM2014-00135
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`1
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 2 of 13 PageID #:48009
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`I.
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`INTRODUCTION
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`On March 13, 2015 this Court entered an Order (Dkt. 1175) finding that “prosecution
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`history estoppel applies to bar the doctrine of equivalents.” This ruling was made even though
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`there was no proper motion for judgment as a matter of law on this issue pending before the
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`Court. Indeed, the order (Dkt. 1175) stemmed from the parties jury instruction conference, and
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`specifically from TT’s bench memo relating to the jury instructions for prosecution history
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`estoppel (“PHE”) (Dkt. 1144) and CQG’s response to that bench memo (Dkt. 1167). TT did not
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`have any opportunity, let alone a full and fair opportunity, to respond to an argument to strike
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`from the case one of its three infringement grounds. Indeed, at the jury instruction conference,
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`counsel did not even perceive that the issue of judgment as a matter of law was being argued and
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`had no way of fully understanding CQG’s position based on a few paragraphs in a bench memo
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`filed shortly before that conference.
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`TT believes that this Court’s decision was based entirely on the eSpeed litigation and the
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`doctrine of collateral estoppel, and that this Court did not address the underlying merits of
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`whether prosecution history estoppel (“PHE”) actually bars TT from asserting the doctrine of
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`equivalents (“DOE”) in this case. As such, TT was barred from arguing that: (1) there is no
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`rebuttable presumption of prosecution history estoppel (“PHE”) because the accused CQG
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`products are outside the scope of the subject matter surrender by the amendments during
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`prosecution of the patents-in-suit and (2) the Festo exceptions rebut any presumption of PHE.
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`Because the issue of collateral estoppel is purely a legal issue, and because there is no
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`requirement that TT file either a Rule 50(b) or a Rule 59 motion to preserve the issue for appeal,
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`TT will not repeat here all of the arguments it made previously in its motion for reconsideration
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`(Dkt. 1176), that was denied by this Court. Attached hereto is Dkt. 1176 for the Court’s
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`2
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 3 of 13 PageID #:48010
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`convenience, which sets forth TT’s arguments relating to collateral estoppel, which are
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`incorporated by reference into the present motion. As TT explained in Dkt. 1176, collateral
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`estoppel does not apply because the first three requirements for collateral estoppel are not met.
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`First, the issues in this case (i.e., whether there is a rebuttable presumption of PHE with respect
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`CQG’s DOMTrader product and, if so, whether the rebuttable presumption is overcome by any
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`Festo exception with respect to CQG’s DOMTrader product) are not the same as the issue
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`addressed in eSpeed (i.e., whether PHE barred TT from asserting the DOE against eSpeed’s
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`eSpeedometer product--a totally different product then DOMTrader). In addition, the issue of
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`Festo exceptions was never considered in eSpeed for any product, let alone the accused products
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`here. Second, the issues here were never litigated in eSpeed. Third, certain statements by Judge
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`Moran in eSpeed (and relied upon by CQG) were not essential to the final judgment in eSpeed.
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`Moreover, the Federal Circuit’s ruling affirming Judge Moran made clear that the reasoning for
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`finding PHE with respect to the eSpeedometer product does not apply to the facts here.
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`To the extent that this Court’s March 13, 2015 order did actually address and consider the
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`merits of any Festo exceptions and actually based its ruling on the lack of any such exceptions
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`(and TT does not believe that this Court did), then TT respectfully requests that this Court grant
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`TT’s motion for a finding under Rule 50(b) that there is no PHE. The reason for this is simple.
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`Even if there was a rebuttable presumption of PHE (and there is not as explained below), two of
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`the Festo exceptions apply which would overcome any such presumption.1 In particular, at trial,
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`TT’s expert provided unrebutted testimony that the Price Hold feature in DOMTrader would
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`have been viewed as both unforeseeable and tangential to the purpose of the amendments by one
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`of ordinary skill at the time of the amendments. Because these Festo exceptions apply, there can
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`1 Although PHE ultimately is a legal question, there are underlying issues of fact including those
`associated with the Festo exceptions.
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`3
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 4 of 13 PageID #:48011
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`be no PHE.
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`Once PHE is removed, this Court should also grant TT’s motion for a finding under Rule
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`50(b) that the accused DOMTrader product infringes under the DOE because, as set forth below,
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`no reasonable jury could reach any other conclusion based on the evidence put forth at trial. At
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`the very least, the Court should grant TT’s alternative motion for a new trial under Rule 59 to
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`permit the jury to consider infringement under the DOE (along with the associated damages
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`resulting that infringement and willfulness).
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`II.
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`LEGAL STANDARDS
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`A.
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`Rule 50 And Rule 59
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`Judgment as a matter of law is appropriate under Rule 50(b) of the Federal Rules of Civil
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`Procedure if, in light of the entire record, no reasonable jury could find to the contrary.
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`McMillan v. Stoll, No. 09 C 1622, 2012 WL 707117 at *1 (N.D. Ill. Mar. 5, 2012)2 (quoting
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`Schandelmeier v. Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir. 2011)).
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`Rule 59 permits a court to order a new trial “after a jury trial, for any reason for which a
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`new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1).
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`In deciding whether to grant a new trial, district courts determine “whether the verdict was
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`against the manifest weight of the evidence, the damages are excessive, or if for other reasons the
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`trial was not fair to the moving party.” Fujitsu Ltd. v. Tellabs Operations, Inc., 08 C 3379, 2013
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`WL 268607, at *4 (N.D. Ill. Jan. 24, 2013) (quoting Frizzell v. Szabo, 647 F.3d 698, 702 (7th
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`Cir. 2011)); see Shaps v. Provident Life & Accident Ins. Co., 244 F.3d 876, 885 (11th Cir.2001)
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`(noting that a new trial may be ordered “when the 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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`2 Unpublished cases are attached as Exhibit D.
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`4
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 5 of 13 PageID #:48012
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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)).
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`B.
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`The Law On Prosecution History Estoppel (“PHE”)
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`The ultimate question of whether an accused product infringes under the doctrine of
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`equivalents is one of fact for the jury to decide. Crown Packaging Technology, Inc. v. Rexam
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`Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009); Interactive Pictures Corp. v. Infinite
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`Pictures, Inc., 274 F.3d 1371, 1376 (Fed. Cir. 2001) (“[d]etermination of infringement by
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`equivalents is an issue of fact, which after a jury trial we review for substantial evidence”
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`(citations omitted)). However, before this ultimate question is reached, the court determines
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`whether the patentee can “avail itself of the doctrine of equivalents” by determining whether
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`PHE bars infringement under the doctrine of equivalents. Id. (citing Warner–Jenkinson Co. v.
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`Hilton Davis Chem. Co., 520 U.S. 17, 39 n.8 (1997) (reasoning that whether a patent's
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`prosecution history estops the patentee from arguing an equivalent is an issue of law)).
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`For there to be a rebuttable presumption of PHE, three factors must be established: (1) an
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`amendment to the claims that further limits the claim; (2) the amendment must have been for
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`purposes of patentability; and (3) the accused product at issue must be within the scope of the
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`surrender resulting from the amendment.3 Pacific Coast Marine Windshields Ltd. v. Malibu
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`Boats. LLC, 739 F.3d 694, 702 (Fed. Cir. 2014); see also Intervet Inc, 617 F.3d at 1291(stating
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`the need for the court to conduct a comparison of the accused product with the claims as
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`construed to determine whether the accused product falls within the scope of the subject matter
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`3 TT does not contest that the eSpeed litigation already established factors 1 and 2.
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`5
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`surrendered). If all three of these factors are not present, then there is no PHE. If all three
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`factors are present, then there is a rebuttable presumption of PHE. See Festo Corp. v. Shoketsu
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`Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 740-41 (2002). When a rebuttable presumption
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`exists, the patentee can bring forth evidence of one of the so-called “Festo exceptions” to rebut
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`the presumption. Id. Like the application of PHE, the applicability of the Festo exceptions
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`depends on analysis of the functionality of the accused products. See Smithkline Beecham Corp.
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`v. Excel Pharm., Inc., 356 F.3d 1357, 1362-64 (Fed. Cir. 2004); Festo, 344 F.3d at 1369.
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`Whether the patentee has rebutted the presumption that PHE applies is a question of law
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`determined on a case-by-case basis. Amgen Inc. v. Hoechst Marion Roussel, Inc., 457 F.3d
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`1293, 1312 (Fed. Cir. 2006), cert. denied, 127 S. Ct. 2270 (U.S. 2007) (“[w]hether a patent-
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`holder has successfully rebutted the Festo presumption of the surrender of equivalents is a
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`question of law”); Honeywell Intern. Inc., 370 F.3d at 1143 (noting that “whether there was a
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`presumption of estoppel is best dealt with on a case-by-case basis”) (quotations omitted);
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`Ranbaxy Pharm. Inc., 350 F.3d at 1240 (same). Although the question of whether the patentee
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`has successfully rebutted the presumption of PHE is indeed a question of law, this question
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`naturally involves underlying issues of fact, “which may properly be decided by the court.”
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`Biagro Western Sales, Inc. v. Grow More, Inc., 423 F.3d 1296, 1301–02 (Fed. Cir. 2005)
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`(recognizing that “[r]ebuttal of the presumption may be subject to underlying factual issues”)
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`(citing Festo Corp., 344 F.3d at 1368 n. 3); see also Duramed Pharma., Inc. v. Paddock Labs.,
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`Inc., 2011 WL 2905561, *3 (Fed. Cir. 2011) (concluding that the Festo exception of
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`“[f]oreseeability is a question of law based on underlying issues of fact”).
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`6
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`III.
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`IF THIS COURT WENT BEYOND COLLATERAL ESTOPPEL AND
`ACTUALLY BASED ITS RULING ON THE MERITS OF THE FESTO
`EXCEPTIONS, THEN TT MOVES UNDER RULE 50(b) THAT THERE IS NO
`PHE AND THAT CQG INFRINGES UNDER THE DOE
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`As set forth above, TT believes that this Court’s ruling that PHE applies to bar the DOE
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`was based solely on collateral estoppel. Indeed, this Court stated: “[t]his Court finds that
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`collateral estoppel bars TT from relitigating this issue [PHE] and from asserting that CQG’s
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`price column, which moves in response to some, but not all, changes in the inside market
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`infringes under the doctrine of equivalents.” Dkt. 1175, p. 2. TT also believes that this Court
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`never addressed the underlying merits of PHE including whether any of the Festo exceptions
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`presented by TT at trial were sufficient to rebut any possible presumption of PHE. Although the
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`March 13, 2015 Order states that “TT presented only conclusory statements that the “evidence”
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`supported TT’s ability to rebut the presumption that the narrowing amendment disclaimed a
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`price axis that moves in response to a change in the inside market,” TT believes that this Court
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`was merely referring to arguments made by TT’s counsel at the hearing, and not the underlying
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`evidence that was presented at trial. Id.
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`Assuming this Court’s ruling was based solely on collateral estoppel, then there is no
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`need for this Court to consider the rest of this brief, and TT will take the issue of collateral
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`estoppel up on appeal. If, on the other hand, this Court’s March 13, 2015 Order did actually
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`address and consider the merits of the Festo exceptions and actually based its ruling on a lack of
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`any such exceptions, then TT moves under Rule 50(b) that there is no PHE.
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`In particular, even if there was a rebuttable presumption of PHE (and there is not as
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`shown in Section IV below), two of the Festo exceptions apply which would overcome any such
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`presumption. The actual evidence that came in during the trial clearly shows that TT has
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`established the applicability of the unforseeability and tangential Festo exceptions to overcome
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`7
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`the rebuttable presumption.
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`For example, TT’s expert, Mr. Thomas, testified that in the conventional screens like the
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`one shown in Figure 2 of the patents-in-suit, every time the inside market changed, the prices in
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`the grid change, and it is the real value of those prices that are changing. See e.g., Ex. A, Trial
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`Tr. (Thomas) 658:4 –19. He explained further that in the DOMTrader with Price Hold, on the
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`other hand, the label associated with the price may move, but the real price (which is associated
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`with where the mouse was hovering) does not change. Id. As such, he concluded that the Price
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`Hold is a “gimmick” and explained what he meant by that by giving an example of somebody
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`switching the labels on a keyboard. Id. With that background, he went on to explain why one of
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`ordinary skill in the art would have viewed the accused functionality, the DOMTrader with Price
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`Hold, as unforeseeable at that time of the amendments. Id. at 679:17 – 681:6. For example, Mr.
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`Thomas explained that in mission critical applications such as the trading screens covered by the
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`claims, it would have been “unthinkable” to have “Price Hold” functionality in which the real
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`price value associated with a cursor for order entry is different than the displayed price label. Id.
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`For example, the idea of changing the label on a button in a mission critical application (e.g., a
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`button in the cockpit of an airplane) would make no sense and would not be foreseeable.
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`Mr. Thomas also testified as to why one of ordinary skill in the art would have viewed
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`such functionality as tangential to the purpose of the amendments. Id. at 681:6-21. The purpose
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`of the amendment was to deal with situations like Figure 2 where when a displayed number
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`changes, the real value of that cell changes. See e.g., id. Mr. Thomas explained that Price Hold
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`functionality that keeps the real value the same, but moves the displayed price label, was
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`tangential to this purpose. Id. CQG offered no proof to rebut any of this at trial. For example,
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`Dr. Mellor said nothing to challenge Mr. Thomas’ testimony on unforseeability or tangential.
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`See generally id.; Trial Tr. (Mellor) 1869 et. seq.
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`Accordingly, the evidence established at trial clearly shows that the accused Price Hold
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`functionality was not foreseeable at the time of the amendments and was tangential to the
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`purpose of the amendment. Thus, even if there is a rebuttable presumption of PHE, the
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`undisputed evidence establishes by more than a preponderance of the evidence4 that the
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`presumption has been overcome and PHE does not apply to the accused DOMTrader product.
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`Once PHE is removed, this Court should also grant TT’s motion for a finding under Rule
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`50(b) that the accused DOMTrader product infringes under the DOE because no reasonable jury
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`could reach any other conclusion based on the evidence put forth at trial. Indeed, TT proffered
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`detailed and overwhelming evidence proving that the DOMTrader infringes under the DOE,
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`including a full analysis from its technical expert explaining how the “function/way/result” test
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`and the “interchangeability” test were both met. CQG’s alleged expert, on the other hand, did
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`not even mention these tests, let alone rebut any of this testimony from TT’s expert. Instead, he
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`merely made the following vague and conclusory statement “[w]ell, something that moves can’t
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`be close enough to something that’s required to not move. So they can’t be equivalent.” Ex. A,
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`Trial Tr. (Mellor) at 1911:3-5. This falls woefully short of rebutting TT’s DOE case and cannot
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`support a verdict of non-infringement. In this event, there would also need to be a new trial on
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`related issues, such as damages and willfulness. At the very least, the Court should grant TT’s
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`alternative motion for a new trial under Rule 59 to permit the jury to consider infringement under
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`the DOE (along with the associated damages resulting from that infringement and willfulness).
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`4See Integrated Tech. Corp. v. Rudolph Technologies, Inc., 734 F.3d 1352, 1356 (Fed. Cir. 2013) cert.
`denied, 134 S. Ct. 2873 (2014) (“A patentee bears the burden to rebut the presumptive application of
`prosecution history estoppel by establishing one of three exceptions by a preponderance of the
`evidence”).
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`IV.
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`IF THERE IS NO COLLATERAL ESTOPPEL FOR ANY REASON, TT
`PREVAILS ON INFRINGEMENT UNDER THE DOE
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`TT notes for the record that if the merits are considered, it is clear that PHE does not
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`apply for multiple reasons and that CQG infringes under the DOE. In other words, if either
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`aspect of this Court’s collateral estoppel ruling is wrong (scope of surrender or the Festo
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`exceptions), TT prevails on DOE. As already noted above in Section III, the Festo exceptions
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`result in no PHE even if there is a rebuttable presumption.
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`In addition, on the merits, there is no rebuttable presumption of PHE in the first place
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`because the accused DOMTrader is not within the scope of what was surrendered by the relevant
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`amendments made during the prosecution of the patents-in-suit. The amendments merely require
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`price levels that do not move in response to a change in the inside market, not price levels that do
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`not move in response to every change in the inside market. Ex. A, Trial Tr. (Thomas) 678:8 -
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`679:16. The Court has already noted that this is the express language of the amendments. Id. at
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`1946:1-3; Dkt. 1175 at 2. This means that what is surrendered by the amendment is a screen in
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`which the prices move in response to every change in the inside market. Ex. A, Trial Tr.
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`(Thomas) 678:10-23. TT’s technical expert at trial (Mr. Thomas) illustrated this with
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`demonstratives at 679:1-16, which show a screen like Figure 2 of the patents in suit (where the
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`prices change with every change in the inside market) as what is surrendered and the CQG’s
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`DOM Trader as not being surrendered. Ex. B (PTX 5648). Importantly, CQG’s expert, Dr.
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`Mellor, admitted that the amendments (which govern the scope of surrender) only require that
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`the prices do not move in response to a change in the inside market. Id. at 1945-22 – 1946:6;
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`Ex. C (Expert Report of Dr. Mellor), ¶¶ 145-47. Moreover, he admitted that there is no
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`requirement that the prices do not move in response to every change in the inside market. Id.
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`CQG has also admitted that the Market Mode with Price Hold operates such that the prices do
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`not move in response to at least one change in the inside market.5 Ex. A, Trial Tr. (Mellor)
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`1926:7 – 1927:13. These admissions are determinative because the accused product indisputably
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`meets the language of the amendment and is not surrendered. Accordingly, because the accused
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`DOMTrader product is not within the scope of what was surrendered in the amendments, there is
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`no rebuttable presumption of PHE.
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`As explained in Section III above, without PHE, CQG infringes under the DOE because
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`the evidence is clear that the relevant accused products are equivalent.
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`V.
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`CONCLUSION
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`This Court’s ruling was based entirely on collateral estoppel, a pure legal issue that TT
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`will take up on appeal. However, to the extent this Court based its decision on the underlying
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`merits of PHE and found a lack of Festo exceptions, then this Court should grant TT Rule 50(b)
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`motion and find that there is no PHE based on the undisputed evidence at trial that two of the
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`Festo exceptions apply, which overcomes any such presumption of PHE. Once PHE is removed,
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`this Court should also grant TT’s motion for a finding under Rule 50(b) that the accused
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`DOMTrader product infringes under the DOE because no reasonable jury could find otherwise
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`based on the evidence at trial. Alternatively, TT moves under 59 for a new trial to permit the
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`jury to consider infringement under the DOE (along with the associated damages resulting that
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`infringement and willfulness).
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`5 Indeed, the evidence established that typically the prices in that product do not move when the inside
`market changes. Id. at 1538:12-22.
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`11
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 12 of 13 PageID #:48019
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`By:
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`Respectfully submitted,
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`s/ Cole B. Richter
`Leif R. Sigmond, Jr. (ID No. 6204980)
`(sigmond@mbhb.com)
`Matthew J. Sampson (ID No. 6207606)
`(sampson@mbhb.com)
`Michael D. Gannon (ID No. 6206940)
`(gannon@mbhb.com)
`S. Richard Carden (ID No. 6269504)
`(carden@mbhb.com)
`James C. Gumina (ID No. 6195604)
`(gumina@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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`12
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`Date: April 15, 2015
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`Case: 1:05-cv-04811 Document #: 1220 Filed: 04/15/15 Page 13 of 13 PageID #:48020
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`CERTIFICATE OF SERVICE
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`I certify that a copy of the foregoing TT’S MOTION FOR JUDGEMENT AS A MATTER OF
`LAW CONCERNING PHE AND INFRINGEMENT UNDER THE DOE AND FOR A NEW
`TRIAL 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/ Cole B. Richter
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`13
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