`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`Case No. 10 C 715
`(Consolidated with:
`10 C 716, 10 C 718,
`10 C 720, 10 C 721,
`10 C 726, 10 C 882,
`10 C 883, 10 C 884,
`10 C 885, 10 C 929,
`10 C 931)
`
`Judge Virginia M. Kendall
`Magistrate Geraldine S. Brown
`
`Case No. 10 C 718
`
`Judge Virginia M. Kendall
`
`))))))))))) ))))))))))))
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Plaintiff,
`
`v.
`
`BCG PARTNERS, INC.,
`
`Defendant.
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Plaintiff,
`
`v.
`
`CQG, Inc. and CQGT, LLC,
`
`Defendants.
`
`CQG’S POSITION STATEMENT REGARDING
`TD AMERITRADE’S MOTION TO STAY
`On May 19-20, 2014, the TD Ameritrade Defendants (“TD Ameritrade”) filed Covered
`
`Business Method (“CBM”) petitions with the U.S. Patent and Trademark Office (“PTO”)
`
`seeking to invalidate 5 patents at issue in this consolidated case. On May 22nd, TD Ameritrade
`
`filed a motion to stay these consolidated proceedings under Section 18(b) of the America Invents
`
`Act (Dkt. # 545). The CQG Defendants (“CQG”) submit this position statement to address this
`
`recent filing.
`
`TRADING TECH EXHIBIT 2302
`TD Ameritrade v. Trading Technologies
`CBM2014-00135
`
`Page 1 of 4
`
`
`
`Case: 1:10-cv-00715 Document #: 553 Filed: 06/04/14 Page 2 of 4 PageID #:24453
`
`Without addressing the substance of TD Ameritrade’s CBM petitions, CQG does not
`
`object to TD Ameritrade’s request to stay this case pending the outcome of the PTO’s review of
`
`the CBM petitions.
`
`As indicated by SunGard’s position statement (Dkt. # 548), TT recently asked the
`
`defendants whether they would agree to be estopped from asserting in this case any invalidity
`
`arguments made by TD Ameritrade in its CBM petitions. Because CQG did not join or assist in
`
`the filing of the CBM petitions, if the PTO issues a final written decision under 35 U.S.C. §
`
`328(a), then only TD Ameritrade will be estopped from asserting invalidity positions raised in
`
`the CBM petitions, not CQG. See Leahy-Smith America Invents Act, Pub. L. No. 112-29, §
`
`18(a)(1)(D), 125 Stat. 284, 330 (2011) (providing estoppel for petitioner where a final written
`
`decision has been issued).
`
`Contrary to TT’s suggestion, a non-petitioning defendant like CQG need not consent to a
`
`broad estoppel in order for this Court to grant TD Ameritrade’s motion to stay (Dkt. # 545). In
`
`fact Courts frequently grant stays without estopping the non-petitioning parties. See Progressive
`
`Cas. Ins. Co. v. Safeco Ins. Co., No. 1:10CV01370, 2013 U.S. Dist. LEXIS 54899, *18 (N.D.
`
`Ohio Apr. 17, 2013) (granting a stay pending CBM review of the patent without requiring
`
`estoppel from non-petitioning party); Emp’t Law Compliance, Inc. v. Compli, Inc., No. 3:13-CV-
`
`3574-N, slip op. at 4-5 (N.D. Tex. May 27, 2014) (granting a stay pending inter partes
`
`reexamination of the patent after applying similar factors without requiring estoppel for other
`
`defendants); and Evolutionary Intelligence, LLC v. LivingSocial, Inc., No. 13-cv-047205-WHO,
`
`2014 U.S. Dist. LEXIS 6804, *9 (N.D. Cal. Jan. 17, 2014) (granting a stay with no estoppel to
`
`2
`
`Page 2 of 4
`
`Page 2 of 4
`
`
`
`Case: 1:10-cv-00715 Document #: 553 Filed: 06/04/14 Page 3 of 4 PageID #:24454
`
`non-petitioning party pending inter partes reexamination)1. Accordingly, at this time, CQG does
`
`not consent to be bound by any ruling on TD Ameritrade’s CBM petitions.
`
`Date:
`
`June 4, 2014
`
`Respectfully submitted,
`
`LOEB & LOEB LLP
`
`By:
`
`/s/ Adam G. Kelly___
`One of Their Attorneys
`
`Adam G. Kelly
`William J. Voller III
`J. Simone Jones
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, Illinois 60654
`Tel.: (312) 464-3100
`Fax: (312) 464-3111
`Attorneys for CQG, Inc. and CQGT, LLC
`
`1 Copies of unpublished decisions are included in Exhibit A.
`
`3
`
`Page 3 of 4
`
`Page 3 of 4
`
`
`
`Case: 1:10-cv-00715 Document #: 553 Filed: 06/04/14 Page 4 of 4 PageID #:24455
`
`CERTIFICATE OF SERVICE
`
`I, Adam G. Kelly, certify that CQG’S POSITION STATEMENT REGARDING TD
`AMERITRADE’S MOTION TO STAY was served on all counsel of record on June 4, 2014
`via CM/ECF system.
`
`June 4, 2014
`
`By:
`
`/s/ Adam G. Kelly
`
`Adam G. Kelly
`William J. Voller III
`J. Simone Jones
`Loeb & Loeb LLP
`321 North Clark Street
`Suite 2300
`Chicago, IL 60654
`Attorneys for Defendants
`CQG, Inc. and CQGT, LLC
`
`Page 4 of 4
`
`Page 4 of 4
`
`
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