Trading Technologies International, Inc.
`v.
`GL Trade Americas, Inc., FuturePath
`Trading, LLC et al.
`
`Tutorial
`February 19, 2014
`
`1
`
`TRADING TECH EXHIBIT 2007
`TD Ameritrade v. Trading Technologies
`CBM2014-00135
`
`Page 1 of 119
`
`

`

`Trading Technologies (“TT”)
`
`Chicago company,
`founded in 1994
`• Started with a few
`employees
`• Today, 400+ employees
`worldwide – vast majority
`in Chicago
`Independent Software Vendor (“ISV”)
`• Sells electronic trading software
`• Thousands of customers – including almost every
`major bank (e.g., J.P. Morgan, Bank of America, etc.)
`• Ranked one of IL’s most innovative companies –
`Crain’s (April 19, 2013)
`
`2
`
`Page 2 of 119
`
`

`

`History of Trading: The Pits
`
`In the mid 1990s, almost all futures were
`traded face to face in trading “pits”called
`“open outcry”
`
`3
`
`Page 3 of 119
`
`

`

`History of Trading: Trading Cards
`
`• Not order entry
`screens
`• Lacks all elements
`of claims
`
`4
`
`Page 4 of 119
`
`

`

`History of Trading: Electronic Trading Cards
`
`CUBS
`
`Gutterman ‘031 Patent
`
`• Not order entry screens
`• Lacks all elements of claims
`• Considered by PTO
`
`5
`
`Page 5 of 119
`
`

`

`Open Outcry v. Electronic Trading
`
`Open Outcry
`
`Electronics Trading
`
`Buy
`
`Buyer
`
`Seller
`
`Sell
`
`6
`
`Page 6 of 119
`
`

`

`The Growth of Electronic Futures
`
`By 2006, 93% of Chicago Board of Trade (CBOT)
`futures contracts were traded electronically
`
`Source: TT0111739 through TT0111745
`
`7
`
`Page 7 of 119
`
`

`

`Patented Invention Drove
`Volume Growth at Exchanges
`
`From the summer of 2000
`through 2002, the electronic
`trading volumes on GLOBEX
`exploded. Based on my
`experience, I believe that [TT’s]
`MD Trader Product (which was
`launched in the fall of 2000)
`was a significant factor
`contributing to the electronic
`volume growth at the CME.
`
`8
`
`Decl. of Scott L. Johnston
`Managing Director and CIO
`Chicago Mercantile Exchange
`09/24/04
`
`Page 8 of 119
`
`

`

`Electronic Trading
`
`Traders
`
`Exchange
`
`Exchange
`
`Traders
`Electronic Trading
`
`
`
`Chicago Board ofTrade
`
`9
`
`Page 9 of 119
`
`

`

`Electronic Trading
`
`Traders
`Electronic Trading
`
`Exchange
`
`‘
`
`Chic: qux ard: fTrade
`
`10
`
`Page 10 of 119
`
`

`

`A Typical Electronic Trader’s Desk
`
`• Multiple computer screens
`• Specialized trading software
`• Multiple commodities/
`products active
`
`Lots of data
`• Latest news and information
`on product demand
`• Display of market trends
`
`11
`
`Page 11 of 119
`
`

`

`What Is This Case About?
`
`Specialized trading screen
`
`12
`
`Page 12 of 119
`
`

`

`This Case Is Not About:
`
`Technology at the exchange
`
`Technology behind the screen or
`“under the hood”
`
`• e.g., when and how data
`updated/processed
`
`13
`
`Page 13 of 119
`
`

`

`Invention Viewed From Perspective of the User
`
`Case: 1:05-cv-04120 Document #: 141 Filed: 10/31/06 Page 1 of 25 PageID #:2536
`
`Judge Moran's
`Markman Opinion
`Dkt. 141, at 13-15
`10/31/2006
`
`[P]laintiff’s patents as a whole…
`should be viewed from the perspective
`of the user, not the computer.
`* * * * *
`As we have continually noted,…
`plaintiff’s patents generally were written
`from the perspective of the user.
`
`14
`
`Page 14 of 119
`
`

`

`Background of Invention
`
`Background of Invention
`
`15
`
`Page 15 of 119
`
`

`

`Trading Terminology
`
`
`
`Last Trade PriceLast Trade Price
`
`
`
`(LTP)(LTP)
`
`
`
`Best Bid Price Best Bid Price
`
`
`
`(504.11)(504.11)
`
`
`
`Best Ask Price Best Ask Price
`
`
`
`(504.25)(504.25)
`
`
`
`Best Bid Quantity Best Bid Quantity
`
`
`
`(200)(200)
`
`
`
`Best Ask Quantity Best Ask Quantity
`
`
`
`(500)(500)
`
`Source: finance.yahoo.com
`
`16
`
`Page 16 of 119
`
`

`

`Glossary
`
`Best Bid Price: Highest price with orders to buy
`
`Best Ask Price: Lowest price with orders to sell
`
`Best Bid Quantity: Cumulative number of units of orders
`to buy at best bid price
`
`Best Ask Quantity: Cumulative number of units of orders
`to sell at best ask price
`
`Last Traded Price: Price at which last transaction
`occurred
`
`Tick: Minimum increment in which an item trades
`
`17
`
`Page 17 of 119
`
`

`

`Conventional Electronic Trading Screen
`
`Conventional Electronic Trading Screen
`
`201
`
`202
`
`203
`
`204
`
`205
`
`7632 -——-
`
`mTonal
`
`18
`
`--- 7629 ----
`-- 75245
`7530 m—_-
`
`--. 7623
`200
`7622
`-
`
`7631
`
`2456' ---
`
`-—_-
`
`Page 18 of 119
`
`

`

`Conventional Electronic Trading Screen
`
`Best
`Bid Quantity
`
`Best
`Bid Price
`
`Best
`Ask Price
`
`Best
`Ask Quantity
`
`19
`
`Page 19 of 119
`
`

`

`Contract
`
`Depth
`
`Bithy
`
`BidPtc
`
`I AskPrc
`
`Askoty
`
`LastPrc
`
`Lastoty
`
`Total
`
`I
`
`578
`349
`58
`
`:
`,
`_
`
`7
`
`123125:
`123100‘
`123075
`
`Conventional Trading Screens
`
`
`
`123250
`123275
`123309
`
`265
`52
`144
`
`i
`;_
`
`
`
`Page 20 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`Aurora
`
`IRIS
`
`Intex
`
`21
`
`Page 21 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`NYSE Display Book
`
`22
`
`Page 22 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`SWX
`
`23
`
`Page 23 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`Credit Suisse Prime Trade Screen
`
`24
`
`Page 24 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`OM Click Trade
`
`25
`
`Page 25 of 119
`
`

`

`Conventional Screens =
`Fixed Inside Market Regardless of Layout
`
`TT (Feb. 1999)
`
`26
`
`Page 26 of 119
`
`

`

`Conventional Working Order Book
`
`Working Order Book
`
`27
`
`Page 27 of 119
`
`

`

`Harris Brumfield
`
`Inventor
`
`Successful trader
`
`Chairman of the Board
`and principal owner of TT
`
`28
`
`Page 28 of 119
`
`

`

`"Patent Background — Problem
`
`
`
`Contractl Depth
`
`
`
`BidPrc
`lBithy
`
`473
`111175 :
`
`466
`111170 '
`"
`'5 "'
`85
`111165
`111190
`
`\
`
`_
`
`337
`
`111160
`
`111195
`
`Page 29 of 119
`
`

`

`Patent Background – Problem
`
`Trying to buy 100 ZN DEC04 contracts at 111175
`
`Time 1
`
`Time 2
`
`$1562.50 Loss
`
`111175
`
`111180
`
`30
`
`Page 30 of 119
`
`

`

`History of the Invention
`
`• Mr. Brumfield
`thought there must
`be a better front end
`for futures trading
`
`• First drawing in
`September 1998
`
`TT 020853
`
`31
`
`Page 31 of 119
`
`

`

`History of the Invention
`
`32
`
`Page 32 of 119
`
`

`

`Brumfield’s Trading Profits
`Skyrocketed Due to Invention
`Excluding Adjustments
`
`$
`
`Cumulative Gain
`
`Notes:
`
`04/99
`03/99
`02/99
`01/99
`(1) DEM converted using March 26 DEM-USD exchange rate
`(2) EUR converted to USD using Sept. 22 EUR-USD exchange rate
`
`05/99
`
`06/99
`
`07/99
`
`08/99
`
`09/99
`
`33
`
`Page 33 of 119
`
`

`

`The Invention Was a Huge Success
`
`34
`
`Page 34 of 119
`
`

`

`Elements of Inventive Screen
`
`Static Price Axis:
`A range of prices for
`the product
`
`35
`
`Page 35 of 119
`
`

`

`Elements of Inventive Screen
`
`Bid Display Region
`
`36
`
`Page 36 of 119
`
`

`

`Elements of Inventive Screen
`
`Bid Display Region
`
`First Indicator:
`Highest Bid Price
`
`37
`
`Page 37 of 119
`
`

`

`Elements of Inventive Screen
`
`Ask Display Region
`
`38
`
`Page 38 of 119
`
`

`

`Elements of Inventive Screen
`
`Ask Display Region
`
`Second Indicator:
`Lowest Ask Price
`
`39
`
`Page 39 of 119
`
`

`

`Elements of Inventive Screen
`
`Plurality of Bids:
`Quantities at
`Other Prices
`
`Plurality of Asks:
`Quantities at
`Other Prices
`
`40
`
`Page 40 of 119
`
`

`

`Elements of Inventive Screen
`
`Preset Quantity
`Buttons
`
`41
`
`Page 41 of 119
`
`

`

`Elements of Inventive Screen
`
`Order Entry
`Regions
`
`42
`
`Page 42 of 119
`
`

`

`Elements of Inventive Screen
`
`Display of
`Working Orders
`
`43
`
`Page 43 of 119
`
`

`

`MD Trader
`
`' ii CMELE CL SepIZZ
`
`
`
`
`12' E3
`
`17.!
`i 1
`27;9096
`
`aslgogs
`{9094
`
`Page 44 of 119
`
`

`

`33 CME—B CL Sep12~ 2
`I
`’
`10:26:17
`
`'
`
`
`
`MD Trader vs. Conventional Trading Screen
`
`
`
`
`I x
`
`45 79095“
`
`9094
`
`U5 PI. EMMA
`£7711:
`
`
`
`Page 45 of 119
`
`

`

`MD Trader
`
`“Single Action”
`Order Entry
`
`46
`
`Page 46 of 119
`
`

`

`MD Trader
`
`“Single Action”
`Order Entry
`
`47
`
`Page 47 of 119
`
`

`

`MD Trader
`
`MD Trader
`Recentering
`
`Recentering
`
`Recentering
`
`48
`
`Page 48 of 119
`
`

`

`MD Trader
`
`MD Trader
`Recentering
`
`Recentering
`
`Recentering
`
`49
`
`Page 49 of 119
`
`

`

`MD Trader
`
`“Single Action”
`Order Cancelling
`
`50
`
`Page 50 of 119
`
`

`

`MD Trader
`
`“Single Action”
`Order Cancelling
`
`51
`
`Page 51 of 119
`
`

`

`Invention Dramatically Improves Profitability and
`Increases Volume
`
`Accurate without sacrificing speed
`
`•
`
`Increases trader’s confidence
`
`Intuitive feel for market movement
`
`• Reduces mental burden
`
`52
`
`Page 52 of 119
`
`

`

`Placing a Buy Order at 123100
`
`
`
`
`
`Working Order
`
`Advantage: Accuracy Without Sacrificing Speed
`
`
`
`_ 123350
`
`: 123325
`
`. 123300
`
`123200
`_
`I -123175
`
`I_
`
`123100
`123125
`
`Page 53 of 119
`
`

`

`Advantage: Visualizing the Market
`
`
`
`
`
`liZU 123150
`
`578 123125
`
`'1zaozs'
`
`349 123100
`
`58
`
`123075.
`123050
`
`
`
`Page 54 of 119
`
`

`

`Figures 3/4 of Patent Show This Movement
`
`Time 1
`
`Time 2
`
`Second
`Indicator
`
`First
`Indicator
`
`First
`Indicator
`
`Second
`Indicator
`
`Best
`Bid/Ask
`Prices
`
`Best
`Bid/Ask
`Prices
`
`55
`
`Page 55 of 119
`
`

`

`TT’s Patents Cover Its MD Trader Product
`
`56
`
`Page 56 of 119
`
`

`

`Key Claim Elements
`
`Independent Claims:
`•
`“Static” Price Levels
`•
`“Dynamically Displaying” (“Dynamic Display”)
`•
`“Order Entry Region”
`•
`“Single Action” Order Entry
`Dependent Claims
`•
`“Working Orders”
`•
`“Single Action” Cancellation
`•
`“Re-centering”
`
`57
`
`Page 57 of 119
`
`

`

`Combining Static/Dynamic + Single Action
`Has Been Found Nonobvious Many Times
`
`58
`
`Page 58 of 119
`
`

`

`Combining Static/Dynamic + Single Action
`Has Been Found Nonobvious Many Times
`
`59
`
`Page 59 of 119
`
`

`

`Combining Static/Dynamic + Single Action
`Has Been Found Nonobvious Many Times
`
`60
`
`Page 60 of 119
`
`

`

`Industrywide Hunt for Prior Art
`
`. . .
`
`61
`
`Page 61 of 119
`
`

`

`Combining Static/Dynamic + Single Action
`Has Been Found Nonobvious Many Times
`
`62
`
`Page 62 of 119
`
`

`

`Industry Praise for Invention Was Widespread
`
`
`“...Mr. Brumfield had a “...Mr. Brumfield had a
`
`unique vision and [MD unique vision and [MD
`
`Trader] is ingenious.”Trader] is ingenious.”
`
`
`“...a revolutionary product providing “...a revolutionary product providing
`
`great benefits to electronic traders.”great benefits to electronic traders.”
`
`
`“...had features that I had “...had features that I had
`
`never seen before that never seen before that
`
`greatly benefited the trader.”greatly benefited the trader.”
`
`
`“...created a paradigm change “...created a paradigm change
`
`in the way that active traders in the way that active traders
`
`traded.”traded.”
`
`
`“...changed the way electronic “...changed the way electronic
`
`trading was done.”trading was done.”
`
`
`“...radically different than the “...radically different than the
`
`types of trading tools that types of trading tools that
`
`were available at the time.”were available at the time.”
`
`
`“...a major improvement...so “...a major improvement...so
`
`significant that I cannot put a significant that I cannot put a
`
`price on its value.”price on its value.”
`
`
`“...[different] from anything I had “...[different] from anything I had
`
`ever seen before.”ever seen before.”
`
`
`“...a stroke of genius...I had not “...a stroke of genius...I had not
`
`seen anything like it before.”seen anything like it before.”
`
`
`
`“...a world of difference....”“...a world of difference....”
`
`
`“...a very significant departure “...a very significant departure
`
`from the [systems available].”from the [systems available].”
`
`
`“...not just an incremental “...not just an incremental
`
`improvement.”improvement.”
`
`63
`
`Page 63 of 119
`
`

`

`Nobody Combined “Static” And
`“Single Action” Before TT
`8/00
`TT launches
`MD Trader
`
`No combination of
`static and single
`action order entry
`
`Combination
`becomes standard
`in futures industry
`
`BEFORE
`
`AFTER
`
`64
`
`Page 64 of 119
`
`

`

`Even TT’s Archrival Says Invention Not Obvious
`
`A. I believe---I don't believe that the patents
`in dispute in this case were an obvious---
`how can I phrase this---an obvious
`continuation, if you like, from---from what
`Pats had. Pats had the means to place
`an order into a market, as we've seen,
`with a single-click. Pats had the means to
`display a price within a particular window
`statically. So, we had some of the
`ingredients, if you like, of the contents of
`this particular patent, but TT had also
`done some nonobvious stuff as well?
`
`Deposition of
`Nicholas Garrow
`May 26, 2005
`125:16-126:9
`
`65
`
`Page 65 of 119
`
`

`

`18 Consent Judgments Finding Valid and Infringed
`
`Goldenberg Hehmeyer & Co.
`
`Kingstree Trading, LLC
`
`NinjaTrader, LLC
`
`NYFIX, Inc.
`
`Man Group, PLC
`
`Peregrine Financial Group, Inc. &
`TradeMaven Group, LLC
`
`RTS Realtime Systems AG
`
`Rolfe & Nolan Systems, Inc.
`
`Strategy Runner, Ltd.
`
`FfastFill, PLC
`
`TransMarket Group, LLC
`
`REFCO Group, LLC
`
`Cunningham Trading
`Systems, LLC
`
`Orc Software AB
`
`Patsystems PLC
`
`TradeHelm, Inc.
`
`Rosenthal Collins Group, LLC
`
`Stellar Trading Systems
`
`66
`
`Page 66 of 119
`
`

`

`Other Settlements
`
`Other Licenses
`
`Advantage
`Futures LLC
`
`Marex Trading
`Services Ltd.
`
`TradeExchange Network
`Ltd.
`
`Direct Trading Institutional,
`L.P.
`
`20C, LLC
`
`MarketDelta
`Trader LLC
`
`TradeMonster
`
`67
`
`Page 67 of 119
`
`

`

`The Accused Products – Launched in 2001
`
`GL Internal Product
`Newsletter
`March 2001
`PTX 2064
`
`68
`
`Page 68 of 119
`
`

`

`Defendants’ QuickTrade Product
`
`Defendants’ QuickTrade Product
`
`
`
`
`69
`
`Page 69 of 119
`
`

`

`Issues with Defendants’ Video
`
`Discussion of prior art is misleading
`and inaccurate
`• See next slide
`
`Description of QuickTrade evolution
`is inaccurate
`
`Description of QuickTrade operation
`is inaccurate
`
`70
`
`Page 70 of 119
`
`

`

`Defendants’ Video Inaccurate
`
`Defendants’ Video Inaccurate
`
`
`
`Brokers’ Paper
`Ladder
`__Noi“8lali_o"
`
`No(I—ilerEat—v
`
`NYSE
`
`Display Book
`
`CUBS
`
`Not “Stalin"
`No lJriier‘EiIlrv
`
`Dec. 1998
`
`TradePad in
`
`GL Win 4.31
`
`l
`
`E
`
`NPTIJ Gonsigeretl’i‘
`
`
`
`No0_‘flerEll-W
`
`—:‘22000
`PTD Considered
`1980’s >g/1990’s
`
`.TT
`
`Swiss
`
`INTEX
`
`Excshanwxge’s
`_ol“Static"
`Nuu—rflerEnlrv ;
`
`Not “Siatio”
`No “Single Aclion"
`
`Pro—1980’s
`
`Specialist’s
`
`Order Book
`
`Nlll “Static”
`
`'
`
`0M Click Trade
`Nol“Stali_\_o"
`No “Sinai; Action"
`
`
`
`Mar. 1, 1999
`
`Wit Capital ’208
`
`Provisional App.
`No “Single Aolion"
`
`71
`
`Page 71 of 119
`
`

`

`“Static” Motions
`
`“Static” Motions
`
`72
`
`Page 72 of 119
`
`

`

`Judge Moran’s Stated “Static” Construction
`
`Our earlier constructions remain, and we
`clarify that the price axis never changes
`positions unless by manual
`re-centering or re-positioning.
`
`Judge Moran's
`Supp. Markman Opinion
`Dkt. 148, at 3
`10/31/2006
`
`73
`
`Page 73 of 119
`
`

`

`Judge Moran’s “Static” Construction
`
`Under our construction [of “static”], we find
`that no reasonable jury could determine that any
`eSpeed product that includes automatic
`re-centering of the price axis uncontrolled by the
`user…literally infringes on TT’s patents.
`* * * * *
`Here, any instantaneous movement of the price
`axis, uncontrolled by the user, alters the efficacy
`of the product
`
`* * * * *
`Therefore, based on the foregoing analysis,
`we grant eSpeed’s motion for summary judgment
`of non-infringement for its products containing
`automatic re-centering uncontrolled by the user.
`
`74
`
`Judge Moran's Ruling on
`eSpeed Summary Judgment
`No. 04-5312
`Dkt. 708, at 8, 13, 19
`06/20/2007
`
`Page 74 of 119
`
`

`

`Federal Circuit on “Static”
`
`The manual re-centering feature also avoided the
`possibility of mistakes when the price column
`moved automatically at the same time a trader
`wished to make a purchase. Of course, traders
`might make mistakes despite precautions built
`into the software. Nonetheless, to “provide the
`trader with improved efficiency and versatility in
`placing,” ’132 patent col.3 ll. 21–24, the price
`column cannot shift unexpectedly.
`
`595 F.3d 1340, 93 U.S.P.Q.2d 1805
`(Cite as: 595 F.3d 1340)
`
`Page 1
`
`United States Court of Appeals,
`Federal Circuit.
`TRADING TECHNOLOGIES INTERNATIONAL,
`INC., Plaintiff–Appellant,
`v.
`ESPEED, INC., Ecco LLC, Ecco Ware Ltd., and
`Espeed International, Ltd., Defendants–Cross Ap-
`pellants.
`
`Nos. 2008–1392, 2008–1393, 2008–1422.
`Feb. 25, 2010.
`Rehearing and Rehearing En Banc Denied April 21,
`2010.
`
`Background: Assignee of two patents for com-
`modities trading software brought infringement ac-
`tion against competitors. After construing patent
`claims, 2006 WL 3147697, 2007 WL 611258, the
`United States District Court for the Northern Dis-
`trict of Illinois, James B. Moran, Senior District
`Judge, entered summary judgment in favor of one
`competitor, 507 F.Supp.2d 854, granted summary
`judgment in part with regard to another competit-
`or's invalidity defense, 507 F.Supp.2d 883, denied
`motion for judgment as a matter of law (JMOL)
`with regard to inequitable conduct defense, 581
`F.Supp.2d 915, and ruled that infringement of pat-
`ents was not willful, 2008 WL 63233. Appeal was
`taken.
`
`Holdings: The Court of Appeals, Rader, Circuit
`Judge, held that:
`(1) trading software with mandatory re-centering
`features did not literally infringe patent;
`(2) software did not infringe under doctrine of equi-
`valents;
`(3) prosecution history estoppel precluded patentee
`from relying on the doctrine of equivalents;
`(4) infringement of patents was not willful;
`(5) claim limitation “single action of a user input
`device” in patent was sufficiently definite;
`(6) patents were entitled to priority of provisional
`
`application; and
`(7) inventor's purchase of custom software from
`software developer was not a sale of the software
`for purposes of the on-sale bar.
`
`Affirmed.
`
`Lourie, Circuit Judge, concurred in the result.
`
`Clark, District Judge, filed concurring opinion.
`
`West Headnotes
`
`[1] Patents 291
`
`226.6
`
`291 Patents
`291XII Infringement
`291XII(A) What Constitutes Infringement
`291k226.5 Substantial Identity of Subject
`
`Matter
`
`291k226.6 k. Comparison with claims
`of patent. Most Cited Cases
`Evaluation of
`summary judgment of non-
`infringement in a patent case requires two steps:
`proper claim construction and comparison of those
`claims to the accused product.
`
`[2] Patents 291
`
`324.5
`
`291 Patents
`291XII Infringement
`291XII(B) Actions
`291k324 Appeal
`291k324.5 k. Scope and extent of re-
`view in general. Most Cited Cases
`Despite the Supreme Court's emphasis on the
`trial court's central role for patent claim construc-
`tion, including the evaluation of expert testimony,
`the Court of Appeals may not give any deference to
`the trial court's factual decisions underlying its
`claim construction.
`
`[3] Patents 291
`
`161
`
`© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`TT v. eSpeed,
`595 F.3d 1340, 1354-55
`(Fed. Cir. 2010)
`
`75
`
`Page 75 of 119
`
`

`

`Judge Holderman on “Static”
`
`Judge Moran’s ruling, in essence, was
`that TT’s patents did not cover automatic
`re-centering, that is, software in which
`the price levels automatically change
`positions when new data is received
`reflecting a change in the inside market.
`
`Judge Holderman's Ruling on
`TT's Motion to Dismiss
`No. 11-1558, Dkt. 58, at 2
`01/23/2012
`
`76
`
`Page 76 of 119
`
`

`

`Judge Holderman on Modes
`
`Clearly, it was legally plausible for TT to
`believe it was entitled to display its
`patent marks when its products are
`being used in a mode where there is no
`possibility of automatic re-centering.
`Given the verdict in the eSpeed trial
`regarding the Futures View product and
`Judge Dow’s subsequent ruling in
`Rosenthal holding that the patents cover
`products that have both “static” and
`“automatic re-centering” modes of
`operation, this is eminently reasonable.
`
`77
`
`Judge Holderman's Ruling on
`TT's Motion to Dismiss
`No. 11-1558, Dkt. 58, at 11
`01/23/2012
`
`Page 77 of 119
`
`

`

`Literal Infringement of “Static” Requires:
`
`A mode or condition in which the price levels
`do not change positions unless moved manually
`
`i.e., A mode in which there is no possibility of
`“automatic” movement
`
`78
`
`Page 78 of 119
`
`

`

`(“Speed
`
`+0]
`
`300
`
`A] _ 500
`
`'
`
`Enable Type
`LM'I' MK‘I’I STOFI
`
`Cxl Buy:
`
`cm All
`
`1000
`
`cu Sells
`
`,
`
`.
`
`-——mlzl-
`
`123““)
`
`979
`
`I
`
`-——mm-
`-mm——-
`Imam—ll-
`--m——-
`-mm——-
`-mm——-
`-mm——=
`
`
`
`Page 79 of 119
`
`

`

`Dual Dynamic
`
`Dual Dynamic
`
`Time 1
`
`Time 2
`
`80
`
`Page 80 of 119
`
`

`

`[1~5Peed
`
`Futures View
`
`Cxl Buys
`
`i P
`
`.
`Enable Type
`LM'I' MKT STOP
`
`50
`
`I
`
`500
`
`I
`
`CXI All
`
`Page 81 of 119
`
`

`

`[1LSPeed
`
`Futures View
`
`
`
`50
`I
`590
`I
`‘ 1_°°l 1_°°°l
`
`.
`Enable Type
`LM'I' MKT STOP
`
`CxlAlli
`
`7.
`
`Page 82 of 119
`
`

`

`g g
`Askfl
`Ask
`w Ace
`
`Own
`Ask
`
`1) At a minimum, has mode in which price
`levels cannot be moved except manually
`
`GLTRADE@
`
`IadadBid
`Bid
`mm W
`
`Own
`an
`
`Price
`7
`123400
`123375
`123350
`was
`123300
`1232;:
`123m
`123175
`123150
`123125
`
`123075
`123050
`
`12%:
`122975
`122950
`
`GUS QuiCkTrade therally
`Infringes “Static” Limitation
`
`
`
`- During fixed time interval between
`the predictable time-based
`re-centering events
`
`- Current products, every 15 minutes
`
`' Older products, every 3 years!
`
`0 No possibility of automatic movement
`
`- No risk of missing price
`
`2) Also — “time-based re-centering” is
`predictable and not excluded “automatic”
`under construction of “static”
`
`Page 83 of 119
`
`

`

`(Speed
`
`Dual
`
`(‘Speed
`
`Futures View
`
`We
`GL.‘ r.
`
`~
`i 11.7.
`.42;
`
`.
`Qumknade
`
`Enwlo Type
`
`LMT MKT1STOP|
`
`
`
`
`
`cm
`
`]
`
`LMT mm smp|
`
`—ml
`so
`—]
`‘90
`I
`
`I
`I
`
`300
`500
`1000
`
`CxlBuys
`CxlAll
`on Soil:
`
`I
`
`Page 84 of 119
`
`

`

`Dual
`Dynamic
`
`Futures View
`
`• Always risk of automatic
`re-centering
`• Risk of missing price
`
`• Mode with no risk of
`automatic re-centering
`• No risk of missing price
`
`• Time-based re-centering event only occurs
`after fixed/predictable time period lapses
`• No risk of missing price
`
`85
`
`Page 85 of 119
`
`

`

`TT Is Not Barred From Asserting Infringement
`Under Doctrine of Equivalents (“DOE”)
`
`Surrender limited to software that automatically
`re-centers based on inside market changes
`• TT v. eSpeed, 595 F.3d 1340, 1356-57 (Fed. Cir. 2010)
`
`Time-based re-centering only occurs based on
`a predictable timer
`
`Prosecution History Estoppel does not apply
`
`86
`
`Page 86 of 119
`
`

`

`Issues Presented by “Static” Motions
`
`1) Whether “time-based re-centering” is “automatic”?
`• Uncontrolled/unexpected?
`
`2) Even if “time-based re-centering” is considered
`“automatic,” whether “static” is met by the
`presence of a “static” mode?
`
`3) Whether TT is barred from asserting Doctrine of
`Equivalents against the accused products?
`
`87
`
`Page 87 of 119
`
`

`

`Markman
`
`88
`
`Page 88 of 119
`
`

`

`Judge Moran Already Construed Key Terms
`Claim Term
`Construction
`
`Static Display
`of Prices
`
`A display of prices comprising price levels that do not change
`positions unless a manual re-centering command is received
`
`Common Static
`Price Axis
`
`Price Level
`
`Common
`Corresponding to
`Aligned
`
`Order Entry Region
`
`A line comprising price levels that do not change positions
`unless a manual re-centering command is received and where
`the line of prices corresponds to at least one bid value and one
`ask value
`
`A level on which a designated price or price representation
`resides
`
`In relationship with
`
`An area comprising a plurality of locations where users
`may enter commands to send trade orders, and that each
`location corresponds to a price level along the common
`static price axis
`
`89
`
`Page 89 of 119
`
`

`

`Judge Moran Already Construed Key Terms
`Claim Term
`Construction
`
`Dynamic Display
`
`Dynamically
`Displaying
`
`Indicator
`
`When the market
`changes
`
`A display of a plurality of bids and asks that are updated in
`response to new market information such that the bids and asks
`change positions relative to the static display of prices when the
`market changes
`
`Updating the first (second) indicator in response to new market
`information such that the first (second) indicator changes
`positions relative to the common static price axis when the
`market changes
`Something that indicates
`
`At the time that new data reflecting a change in the inside market
`is received
`
`"When" is not synonymous with "instantaneously" but rather
`encompasses the concept that the update will not appear on the
`trader's screen until the software and/or computer receives,
`processes, and displays the new market information.
`
`90
`
`Page 90 of 119
`
`

`

`Judge Moran Already Construed Key Terms
`Claim Term
`Construction
`
`Display of a Plurality of Bids and
`a Plurality of Asks
`
`A display of more than one bid and more than one
`ask
`
`Displaying the Bid and Ask
`Display Regions
`
`A display of one or more bids and one or more
`asks
`
`Single Action of
`a User Input Device
`
`Parameter
`
`Trade order
`
`An action by a user within a short period of time
`that may comprise one or more clicks of a mouse
`button or other input device
`
`An element of a trade order, including, but not
`limited to, quantity, price, type of order and the
`identity of the commodity
`
`A single, electronic message in executable form
`that includes at least all required parameters of a
`desired trade
`
`Program Code
`
`Does not fall within 35 U.S.C. § 112 ¶ 6
`
`91
`
`Page 91 of 119
`
`

`

`“Dynamic” Terms
`
`“such that when the inside market changes,…
`at least one of the first and second indicators
`moves”
`
`“in response to” (from Judge Moran’s construction)
`
`“indicator”
`
`“moves” (“changes positions”)
`
`92
`
`Page 92 of 119
`
`

`

`“Dynamic” Terms
`
`Judge Moran already construed
`
`Defendants contradict prior positions
`
`Defendants contradict specification
`
`93
`
`Page 93 of 119
`
`

`

`Judge Moran Already Construed “Dynamic”
`
`price axis
`
`Page 94 of 119
`
`

`

`Defendants Admitted That They are Trying to
`Change Judge Moran’s Construction
`
` UNITED STATES DISTRICT COURT
` NORTHERN DISTRICT OF ILLINOIS
` EASTERN DIVISION
`
`Page 1
`
`TRADING TECHNOLOGIES )
`INTERNATIONAL, INC., )
` )
` )
` Plaintiff, )
` ) No. 05 C 4120
`vs. )
` )
`GL TRADE SA (n/k/a SUNGARD )
`FINANCIAL SYSTEMS, (FRANCE) )
`SAS), GL TRADE AMERICAS, INC., )
`SUNGARD DATA SYSTEMS INC., and )
`SUNGARD INVESTMENT VENTURES )
`LLC, )
` )
` Defendants. )
` )
`------------------------------- )
` ) Chicago, Illinois
`TRADING TECHNOLOGIES ) October 4, 2011
`INTERNATIONAL, INC., ) 9:30 o'clock a.m.
` )
` Plaintiff, )
` )
`vs. )
` )
`FUTUREPATH TRADING, LLC, )
` )
` Defendant.
`
` TRANSCRIPT OF PROCEEDINGS - STATUS AND MOTIONS
` BEFORE THE HONORABLE EDMOND E. CHANG
`
` FEDERAL OFFICIAL COURT REPORTER
` MS. KRISTA BURGESON
` 219 South Dearborn Street
` Chicago, Illinois 60604
` 312-435-5567
`
`Status Hearing
`before Judge Chang
`Dkt. 778, at 7, 12
`10/04/2011
`
`MR. BENNETT: In one patent is the phrase,
`dynamic display, and in the other is, dynamically
`displaying. Judge Moran treated that in one
`heading within his Markman ruling. That he
`addressed. We have a disagreement, belief,
`and I don’t know whether in fact we believe that
`TT has accepted Judge Moran’s construction.
`We disagree with Judge Moran’s construction.
`* * * * *
`So of all the terms that have been addressed
`here today, dynamic display, dynamically
`displaying, was addressed by Judge Moran, we
`disagree to a certain degree with that
`construction.
`
`95
`
`Page 95 of 119
`
`

`

`“Such That When the Inside Market Changes,...
`At Least One of the First and Second Indicators Moves”
`
`Defendants now admit that they want claim to
`require movement based on quantity changes
`• Even when no price change
`
`This is illogical
`
`96
`
`Page 96 of 119
`
`

`

`142750
`
`142725
`
`.142700
`
`; 142675
`I:142650
`142625
`
`Price Alone Drives Movement
`
`
`
`LI ENE mm 2
`
`
`
`Page 97 of 119
`
`

`

`Judge Moran Already Decided This Issue
`
`Case: 1:05-cv-04120 Document #: 141 Filed: 10/31/06 Page 1 of 25 PageID #:2536
`
`Judge Moran's
`Markman Opinion
`Dkt. 141, at 12-13
`10/31/2006
`
`[M]ovement occurs simply
`because changed bid or ask
`values correspond to different
`prices in the static price display.
`
`98
`
`Page 98 of 119
`
`

`

`Defendants Already Admitted That Movement
`Is Only Caused by Price Changes
`
`Movement can occur, for example, when
`the inside market changes, namely when
`a new best bid price or best ask price is
`entered, and/or when prices away from
`the inside market are entered.4
`
`4Simply changing the best bid quantity or
`best ask quantity need not necessarily
`result in movement of the inside market.
`The quantity traded can be less than the
`total amount available at a particular
`price. For the inside market to move, the
`change requires a change in the best bid
`or ask price.
`
`99
`
`Def's Supp. Markman
`Opposition in eSpeed
`No. 04-5312, Dkt. 343 at 10
`06/16/2006
`
`Page 99 of 119
`
`

`

`Defendants Already Admitted That Movement
`Is Only Caused by Price Changes
`
`The first series of displays on page 16 demonstrates updating: while
`the quantities in the bid and ask columns are changing, no movement
`occurs because the change is insufficient to fill the order.
`
`Def's Supp. Markman Opposition in eSpeed, No. 04-5312, Dkt. 343 at 15-16, 06/16/2006
`
`100
`
`Page 100 of 119
`
`

`

`“In Response To” Means “Based On”
`
`“Updating the first (second) indicator
`in response to new market information”
`
`Defendants seek to add “under the hood” limitations that
`are not in Judge Moran’s construction:
`
`Directly in response to the computer receiving new market
`information (i.e., no intervening event)
`
`In real-time (i.e., immediately) as the computer receives new
`market information
`
`Continuously (i.e, showing each and every market update)
`
`101
`
`Page 101 of 119
`
`

`

`Judge Moran’s Opinion Confirms That “Directly”
`Not Part of “Dynamic”
`
`Case: 1:05-cv-04120 Document #: 141 Filed: 10/31/06 Page 1 of 25 PageID #:2536
`
`Judge Moran's
`Markman Opinion
`Dkt. 141, at 11
`10/31/2006
`
`Updates based on the
`changing market data cause
`the displayed quantities of bids
`and asks to appear to move
`along the static price axis.
`
`102
`
`Page 102 of 119
`
`

`

`Judge Moran’s Opinion Confirms That “Real
`Time” Not Part of “Dynamic”
`
`Case: 1:05-cv-04120 Document #: 141 Filed: 10/31/06 Page 1 of 25 PageID #:2536
`
`Judge Moran's
`Markman Opinion
`Dkt. 141, at 11
`10/31/2006
`
`[W]e accept plaintiff’s construction. “When
`the market changes” is construed as “at
`the time that new data reflecting a change
`in the inside market is received.” Plaintiff,
`and this construction, recognizes that
`“when” is not synonymous with
`“instantaneously.” Rather, “when”
`encompasses the concept that the update
`will not appear on the trader's screen until
`the software and/or computer receives,
`processes, and displays the new market
`information.
`
`103
`
`Page 103 of 119
`
`

`

`Defendants and All Parties Agreed That
`No “Real-Time” Requirement in Claim
`
`[C]onstru[ing] “when” to mean “at the
`precise moment” and “immediately”…
`improperly imports a temporal limitation,
`i.e., immediately, into the claims. As
`discussed above, however, there is no
`support whatsoever for a temporal
`limitation.
`
`Def's Supp. Markman
`Opposition in eSpeed
`No. 04-5312, Dkt. 343 at 10
`06/16/2006
`
`104
`
`Page 104 of 119
`
`

`

`Judge Chang Denied Defendants’ Estoppel Argument
`
`I am not judicially estopping the
`plaintiff from arguing that dynamically
`display does not include a limitation of
`instantaneous or real time
`
`Markman Hearing
`Before Judge Chang
`Dkt. 1158, at 5
`10/25/2012
`
`105
`
`Page 105 of 119
`
`

`

`Judge Moran’s Opinion Confirms That
`“Continuously” Not Part of “Dynamic”
`
`Term
`“when the
`inside market
`changes”
`
`TT
`at the time that new
`market data reflecting
`a change in the inside
`market is received
`
`eSpeed
`each time the inside
`market changes
`
`TT's Markman Reply in eSpeed, No. 04-5312, Dkt. 361, at 25-26, 06/30/2006
`Judge Moran's Markman Opinion, Dkt. 141, at 18, 10/31/2006
`
`106
`
`Page 106 of 119
`
`

`

`Judge Moran’s Opinion Confirms That
`“Continuously” Not Part of “Dynamic”
`
`Term
`“when the
`inside market
`changes”
`
`TT
`at the time that new
`market data reflecting
`a change in the inside
`market is received
`
`eSpeed
`each time the inside
`market changes
`
`TT's Markman Reply in eSpeed, No. 04-5312, Dkt. 361, at 25-26, 06/30/2006
`Judge Moran's Markman Opinion, Dkt. 141, at 18, 10/31/2006
`
`107
`
`Page 107 of 119
`
`

`

`
`
`Page 108 of 119
`
`

`

`
`
`Page 109 of 119
`
`

`

`“Indicator” and “Moves”
`
`Judge Moran already construed
`
`Defendants contradict prior positions
`
`Defendants contradict specification
`
`110
`
`Page 110 of 119
`
`

`

`Judge Moran Rejected Defendants’ Argument on
`“Indicator”
`
`Judge Moran rejected eSpeed’s attempt to limit “indicator”
`to “a visual representation of a numerical value”
`
`Defendants are making the same argument here
`
`TT's Markman Reply in eSpeed, No. 04-5312, Dkt. 361, at 45, 06/30/2006
`
`111
`
`Page 111 of 119
`
`

`

`Judge Moran Already Construed “Indicator”
`
`Case: 1:05-cv-04120 Document #: 141 Filed: 10/31/06 Page 1 of 25 PageID #:2536
`
`Judge Moran's
`Markman Opinion
`Dkt. 141, at 13
`10/31/2006
`
`We construe “indicator” in its plain and
`ordinary meaning as “something that
`indi