IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Trading Technologies International, Inc.,
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`Plaintiff,
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`v.
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`CQGT, LLC and CQG, Inc.
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`Defendants.
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`Civil Action No. 05-4811
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Sidney I. Schenkier
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.’S RESPONSES TO
`CQGT, LLC’S AND CQG, INC.’S FINAL INVALIDITY CONTENTIONS
`Pursuant to Local Patent Rule 3.2 and the schedule entered by this Court, Plaintiff
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`Trading Technologies International, Inc. (“TT”) hereby provides its final responses to
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`Defendants CQGT, LLC’s and CQG, Inc.’s (collectively “CQG's”) final invalidity contentions
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`with respect to U.S. Patent Nos. 6,772,132 (“the ‘132 patent”) and 6,766,304 (“the ‘304 patent”)
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`(collectively, “TT’s patents”). These final responses are proffered without prejudice, as
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`discovery is still ongoing (CQG has recently produced millions of pages of documents that TT is
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`still reviewing) and the Court has not yet conducted any claim construction in this case. These
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`final responses shall also not be taken as an adoption, endorsement, or rejection of any particular
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`claim construction.
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`At the outset, TT notes that the '132 and '304 patents have undergone intense scrutiny
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`since the original application was filed in 2000—including standard and "quality review"
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`examination during original prosecution, extensive discovery and analysis in multiple different
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`litigations, the eSpeed trial and appeal, multiple reexamination requests, and even a coordinated
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`TRADING TECH EXHIBIT 2084
`TD Ameritrade v. Trading Technologies
`CBM2014-00135
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`Page 1 of 713
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`industry-wide search for prior art—and yet these patents have repeatedly been found valid.
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`CQG's final contentions fail to raise any legitimate basis for challenging the validity of TT's
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`patents yet again. Indeed, CQG primarily just rehashes arguments that have already been
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`considered and rejected on multiple occasions. Thus, for this reason alone, CQG's final
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`contentions have no merit.
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`CQG's final contentions are also improper for several reasons. First, given that CQG has
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`almost completely replaced its initial contentions with a copy of the contentions from the
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`GL/Sungard case, CQG's final contentions now include many new contentions that were not
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`previously raised in CQG's initial contentions. For instance, CQG's final contentions rely on
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`many new references that were not even cited in CQG's initial contentions, including ePit, OM
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`Click Trade and OpTrade Trading Systems, NYSE Display Book, and PrimeTrade. Further,
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`CQG's final contentions include an extensive listing of "additional grounds of invalidity" that
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`were never raised in CQG's initial contentions at all. However, given CQG's involvement in the
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`eSpeed case and its relationship with GL/Sungard, CQG was fully capable of making these
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`contentions at the time CQG served its initial contentions. This is particularly the case for
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`CQG's added contentions regarding the disclosure of the '322 provisional and the '132/'304
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`specification, which CQG has been capable of making since 2005 when this case was filed.
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`Thus, CQG's failure to include these contentions at the time it served initial contentions
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`violates Local Patent Rule 2.3, and precludes CQG from adding these contentions now in its
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`final contentions. See LPR 2.3(b) ("[Initial] Invalidity Contentions must contain [information
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`about alleged prior art references] to the extent known to the party asserting invalidity")
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`(emphasis added). Further, CQG's attempt to add these additional contentions now is also
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`contrary to the Court's June 11, 2012 order precluding CQG from raising additional invalidity
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`contentions in this case. Dkt. 291.
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`Second, given that CQG almost completely replaced its initial contentions with a copy of
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`the contentions from the GL/Sungard case, CQG's final contentions also rely on a substantial
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`amount of new invalidity discovery taken in the GL/Sungard case. However, this is nothing but
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`an improper attempt to circumvent this Court's June 11, 2012 order precluding CQG from taking
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`further discovery on its invalidity claims in this case. Dkt. 291. Also, much of the new
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`invalidity evidence cited by CQG falls outside the permitted scope of discovery in the
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`GL/Sungard case and was improperly procured by GL/Sungard—including deposition testimony
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`on alleged prior art that was not listed in the GL/Sungard Court's October 20, 2010 order (e.g.,
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`Tradepad, PrimeTrade, etc.) and documents related to alleged prior art that were produced after
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`the Court-ordered deadline for production of such documents. Case No. 05.4120, Dkt. 305.
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`Third, CQG's final invalidity contentions identify well over 100 different references that
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`CQG then groups into 40 different alleged "items of prior art," which goes well beyond
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`reasonable limits and is unduly burdensome. Indeed, Local Patent Rule 3.1 now specifies that
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`"Final Invalidity Contentions may rely on more than twenty-five (25) prior art references only by
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`order of the Court upon a showing of good cause and absence of unfair prejudice to opposing
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`parties." LPR 3.1. Moreover, CQG's contentions are insolubly vague as to how these numerous
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`reference are being combined to create these "items of prior art" that allegedly anticipate and/or
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`render obvious the claimed invention.
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`Fourth, CQG's final invalidity contentions repeatedly fail to include the level of
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`specificity required by Local Patent Rule 2.3. For instance, as discussed in further detail below,
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`CQG repeatedly fails to identify and describe the functionality of a specific item of alleged prior
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`art, such as a specific publication or a specific instance of software that was allegedly offered for
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`sale or publicly used/disclosed in the United States. Rather, CQG attempts to avoid this
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`requirement by defining overarching, amorphous "references" that CQG pieces together based on
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`a combination of different evidence (e.g., code, documents, witness testimony, etc.), which is
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`insufficient and improper. See LPR 2.3(b)(1); 35 U.S.C. § 102. Further, CQG's claim charts
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`include various contentions that fail to specify what portion of the cited evidence is of relevance,
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`which is also insufficient. See LPR 2.3(b)(3).
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`In view of these issues, TT objects to CQG's final contentions as improper and
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`prejudicial, and maintains that CQG should be precluded from making any invalidity contentions
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`beyond those set forth in its initial invalidity contentions. In fact, TT maintains that any one of
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`these issues renders CQG's final contentions improper. Thus, TT expressly reserves its right to
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`raise these issues with the Court at a later date.
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`Nevertheless, without prejudice to this right, TT has gone ahead and provided its
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`responses to CQG's final contentions below based on TT's current understanding of these
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`contentions. TT expressly reserves the right to supplement and/or amend any and all of its
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`responses to CQG's invalidity contentions as permitted by the Federal Rules of Civil Procedure
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`and/or the Local Rules of this District.
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`I.
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`TT's Response to CQG's Allegations of Invalidity Under 35 U.S.C. § 101
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`CQG contends that “[e]ach claim recited in the ‘132 patent and the ‘304 patent, which are
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`directed to the abstract idea of either placing a trade order for a commodity on an electronic
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`exchange, or displaying market information relating to trading of a commodity being traded in an
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`electronic exchange, is invalid under 35 U.S.C. § 101 for failing to claim patentable subject
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`matter.” This contention is wrong for multiple independent reasons.
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`To begin, none of the claims in TT’s patents are directed to merely abstract ideas.
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`Instead, these claims are directed to, for example, a tool that is used for trading. The tool is
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`implemented in software and is embodied in a novel and non-obvious graphical user interface.
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`Among other things, the claims require dynamically displaying bid/ask indicators relative to a
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`static price axis, displaying an order entry region for receiving commands to send orders, and
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`selecting a location of the order entry region via a single action of a user input device to set
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`parameters for and send an order message. Thus, the claims are not merely directed to “placing a
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`trade order for a commodity on an electronic exchange,” or “displaying market information
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`relating to trading of a commodity being traded in an electronic exchange.” Regardless, even
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`claims merely directed to placing an order or displaying market information would not be
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`abstract.
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`Notably, each of the claims also clearly meets the machine or transformation test. And
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`the claims are clearly not directed to natural phenomena, a law of nature, or a mathematical
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`formula. Thus, for at least these reasons, the claims in TT’s patents are not invalid under 35
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`U.S.C. § 101.
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`II.
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`TT's Response to CQG's Allegations of Invalidity Under 35 U.S.C. § 102(b)
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`CQG contends that the ‘132 and ‘304 patents are invalid under the public use bar of 35
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`U.S.C. § 102(b), because of co-inventor Harris Brumfield’s alleged public use of the inventions,
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`and because the ‘132 and ‘304 patents are allegedly not entitled to the benefit of the application
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`date of the earlier U.S. Provisional Application No. 60/186,322 ('the ‘322 provisional') to
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`antedate the alleged public use. Both of these assertions are wrong.
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`TT already addressed this exact same issue in the related GL/Sungard case in connection
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`with GL/Sungard's motion for summary judgment that the '132 and '304 patents are invalid under
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`§ 102(b) and are not entitled to the benefit of the filing date of the '322 Provisional (Case No. 05-
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`4120, Dkt. 558) and TT's related cross-motion for summary judgment that the '132 and '304
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`patents are entitled to the benefit of the '322 Provisional and are not invalid under § 102(b) (Case
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`No. 05-4120, Dkt. 799), and TT hereby incorporates all of its briefing and supporting evidence
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`related to those motions (Case No. 05-4120, Dkt. 800-01 and 1055). Further, TT has provided
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`interrogatory responses related to this issue, which TT also hereby incorporates. See, e.g., TT's
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`response to CQG Interrogatory No. 3.
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`As previously explained by TT, CQG cannot come close to meeting its burden of
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`providing by clear and convincing evidence that the claims are not entitled to claim priority to
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`the ‘322 provisional, while TT has gone beyond what is required by proving that the ‘132 and
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`‘304 patents are entitled to claim priority to the ‘322 provisional. This is because the ‘322
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`provisional undeniably discloses the recited method and display (as well as the recited computer
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`readable medium and client system) for use with any commodity and any time, regardless of
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`whether or not there is an actual bid/ask in the market at every consecutive price level. Case No.
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`05-4120, Dkt. 800; Dkt. 1055.
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`Further, TT's priority claim to the '322 provisional has been considered and upheld on
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`multiple occasions. For example, the PTO's finding during original prosecution that the
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`'132/'304 specification satisfied the written description requirements is likewise a determination
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`that the ‘322 provisional's disclosure supports TT's priority claim, because there is no material
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`difference between the disclosures of the '132/'304 specification and the '322 provisional. Also,
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`during original prosecution, the PTO also separately considered TT's priority claim to the '322
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`provisional and found no issue. See Trading Techs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340
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`(Fed. Cir. 2010).
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`Then, in the eSpeed case, the district court rejected eSpeed’s challenge to TT’s priority
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`claim and found that TT’s patents were entitled to the priority date of the ‘322 Provisional.
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`04-5312, Dkt. 1140. This decision was affirmed by the Federal Circuit. See Trading Techs.
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`Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340 (Fed. Cir. 2010). For at least these reasons, TT’s
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`patents are entitled to claim priority to the filing date of the ‘322 Provisional Application. As
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`such, any alleged use of the claimed invention between March 2 and June 9, 1999 cannot render
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`TT’s patents invalid, and is therefore irrelevant. Nonetheless, as previously explained by TT,
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`CQG cannot prove by clear and convincing evidence that Mr. Brumfield engaged in a “public
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`use” prior to June 9, 1999. Case No. 05-4120, Dkt. 800; Dkt. 1055; see also TT's response to
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`CQG Interrogatory No. 3. As shown, TT has gone above and beyond what is required and
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`actually show that Mr. Brumfield did not engage in a “public use” prior to June 9, 1999.
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`Indeed, while a secret use can qualify as a “public” use in some limited circumstances
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`under the Court created “secret public use” doctrine, the case law establishes two requirements
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`that must both be met. First, the primary purpose of the use has to be commercial, i.e., for the
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`purpose of making money. Invitrogen Corp v. Biocrest Mfg., L.P., 424 F.3d 1374, 1380, 1382
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`(Fed. Cir. 2005) (finding no “secret public use” even where use resulted in some “commercial
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`advantage” and “commercial benefit”); Minemyer v. B-Roc Representatives, Inc., 695 F. Supp.
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`2d 797, 806 (N.D. Ill. 2009). In this respect, if the primary purpose of the use is experimental, it
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`cannot be deemed “public” even if there is also a commercial purpose. Minemyer, 695 F. Supp.
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`2d at 806 (“The question is whether the suspect activities were experiments as opposed to an
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`attempt to profit from the invention -- that is, whether the primary purpose of the [suspect
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`activities] was to conduct experimentation.”). Second, the invention must be sold or used to
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`create or assist in the creation of a product that is sold. Invitrogen, 424 F.3d at 1382-83 (finding
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`no public use of invention secretly used for commercial advantage because patentee “did not sell
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`its invention or any products made with it”).
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`Here, Mr. Brumfield’s use prior to June 9, 1999 was in secret, and the primary purpose of
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`that use was for testing the intended purpose of the invention (to improve profitability)—not for
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`making money. Indeed, this primary purpose is something uniquely known to Mr. Brumfield,
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`and he testified that his primary purpose of using the software did not shift to making money
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`until after June 9, 1999. Further, it is undisputed that the invention was never sold or used to
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`create or assist in the creation of a product before June 9, 1999. For these reasons, Mr.
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`Brumfield’s use during the intervening period could not be an invalidating secret public use.
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`Invitrogen, 424 F.3d at 1379-80 (Fed. Cir. 2005) (first prong of public use test requires either
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`public accessibility or commercial exploitation); Minemyer, 695 F. Supp. 2d at 806.
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`Moreover, contrary to Defendants’ assertions, Judge Moran never ruled that Mr.
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`Brumfield engaged in a “public use” of the claimed invention on March 15, 1999, and Mr.
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`Brumfield indeed did not engage in a “public use” of the claimed invention at any time between
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`March 2 and June 9, 1999. While ruling on eSpeed’s motion for JMOL that TT engaged in
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`inequitable conduct, Judge Moran merely stated that Mr. Brumfield had engaged in a
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`“commercial use” of the claimed invention between March 2, 1999 and June 9, 1999. Case No.
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`04-5312, Dkt. 1215. However, this statement is not equivalent to ruling on “public use.”
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`Indeed, Judge Moran himself clarified that a commercial use and a “public use” under 35 USC §
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`102(b) are two different things, and the court never went on to analyze whether Mr. Brumfield’s
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`commercial use qualified as a “public use.” Case No. 04-5312, Dkt. 1215 (“This duty [to
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`disclose] arises . . . where a commercial use is made of the invention more than one year prior to
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`the [priority date], since such use may constitute a bar to patentability under 35 U.S.C. §
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`102(b).) (emphasis added).
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`Accordingly, in view of the foregoing, the ‘132 and ‘304 patents are not invalid under the
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`public use bar of 35 U.S.C. § 102(b).
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`III.
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`TT's Response to CQG's Prior Art Identification
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`CQG identifies more than 100 references (which CQG has grouped into 40 different
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`alleged "items of prior art") that purportedly form the basis for CQG's contentions that "[t]he
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`‘132 and ‘304 patents are invalid under 35 U.S.C. §§ 102(a), (b), (d), (g) and 103." At the outset,
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`TT notes that the '132 and '304 patents have already been repeatedly found new and nonobvious
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`over many of CQG's identified references, while CQG's remaining references are at best
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`cumulative of numerous other references that have already been considered.
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`For instance, during the original prosecution of TT's patents, the '132 and '304 patents
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`went through an unusually rigorous examination in which the Examiner considered a wide array
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`of different references, including some of the "principal" references now identified by CQG (e.g.,
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`the '550 application and the '282 patent related to Wit Capital), and the Examiner's decision then
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`underwent a second review by an additional experienced Examiner pursuant to a special PTO
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`quality review program (“second set of eyes”). In fact, the '132 and '304 patents went through
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`this two-tiered examination on two separate occasions.
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`Specifically, after the first round of examination and quality review, the PTO issued a
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`Notice of Allowance on March 31, 2002, and TT submitted the issue fee, putting the applications
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`on track for printing and issuance. Shortly before issuance, however, TT became aware of the
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`'282 patent (which relates to CQG's "Wit Capital" art) and the disclosure of the '550 application
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`(which relates to CQG's "ePit" art). TT therefore petitioned to withdraw the application from
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`issuance and put it back into examination, so that the '282 patent and the disclosure of the '550
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`application could also be considered. Pursuant to standard PTO procedures, the Examiner
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`viewed the '282 patent and the disclosure of the '550 application in the broadest reasonable light
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`and treated it as showing "static" prices. See, e.g., Trading Techs., 595 F.3d at 1356 . Based on
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`this, TT amended its claims to require "single action" order entry in combination with a "static"
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`price axis, a "dynamic" bids/asks, and an "order entry region" aligned with the "static" price axis.
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`The Examiner then found TT's claims patentable over the cited art, because no single reference
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`taught the claimed combination and it would not have been obvious to combine these features as
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`done in TT's patent claims. Notably, this finding was made under a preponderance of evidence
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`standard that is lower than CQG's burden of proving invalidity by clear and convincing burden.
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`The Examiner's finding was confirmed during a second quality review, and TT's patents issued a
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`short time later.
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`In 2004-05, TT then initiated several patent infringement suits based on the '132 and '304
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`patents, which were consolidated into the first-filed eSpeed case before Judge Moran. During the
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`eSpeed case, the defendants identified many of the same alleged prior art references and raised
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`many of the same prior art arguments that are now found in CQG's final invalidity contentions,
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`including those based on the "Tradepad," "TSE," "TIFFE," and "Midas Kapiti" references.
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`Nevertheless, the district court and jury in the eSpeed case both rejected any contention that TT's
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`patents were obvious in view of these references. Case No. 04-5312, Dkt. 1061, 1140.
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`Shortly before the eSpeed trial began, an "anonymous party" also submitted a
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`reexamination request that asked the PTO to reconsider the validity of the '132 and '304 patents
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`in view of two of CQG's primary references ("TSE" and the disclosure of the '550 application),
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`which the PTO agreed to consider (the “substantial question of patentability” standard is low and
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`over 90% of such requests are granted). During that reexamination, TT submitted the entire set
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`of alleged prior art as well as the invalidity contentions (organized with a table of contents) from
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`the eSpeed case, and the PTO once again confirmed that TT's patents were not obvious in view
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`of this alleged prior art. Notably, each alleged prior art reference that CQG now identifies was
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`either included in this set of submitted prior art or is merely cumulative of the set of submitted
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`prior art.
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`Finally, more recently, GL/Sungard submitted a second reexamination request that asked
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`the PTO to reconsider the validity of the '132 and '304 patents based on some of the references
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`identified by CQG, including the disclosure of the '550 application, the '031 patent, "LIFFE
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`CONNECT," and "SWX." However, despite the low threshold for such requests, the PTO
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`denied this request (as well as GL/Sungard's request for reconsideration) because it failed to raise
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`a substantial new question of patentability.
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`In view of this history alone, TT maintains that CQG cannot prove by clear and
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`convincing evidence that TT's patents are invalid in view of CQG's identified references.
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`Nevertheless, pursuant to LPR 3.2, TT provides its responses with respect to CQG's alleged prior
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`art references below and in the attached charts, which demonstrate that CQG's alleged prior art
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`references fail to anticipate and/or render obvious any claim of TT's patents. Notably, many of
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`CQG's alleged prior art references also do not even qualify as prior art to TT’s patents, and thus
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`TT points this out in its responses where appropriate (even though the Local Patent Rules do not
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`require this). However, in doing so, TT still reserves its right to challenge the prior art status of
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`any alleged prior art reference identified by CQG.
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`"Tradepad"
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`1.
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`TT objects to CQG's attempt to replace the barebones "Tradepad" contentions in its initial
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`contentions (which appeared to be a copy of eSpeed's contentions) with a completely revamped
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`set of "Tradepad" contentions in its final contentions (which now appear to be a copy of
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`GL/Sungard's contentions). Given that these revamped "Tradepad" contentions are largely just a
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`rehash of the contentions that were already made in the eSpeed case—and are premised on
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`discovery that occurred well before CQG's initial contentions were due (including the discovery
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`from the related GL/Sungard case)—CQG was fully capable of making these "Tradepad"
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`contentions at the time it served initial contentions. This violates Local Patent Rule 2.3(b).
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`TT also objects to CQG's identification of "versions of Tradepad" as an alleged item of
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`prior art, because this lacks the level of specificity required by Local Patent Rule 2.3(b). Indeed,
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`CQG often fails to even identify which "version of Tradepad" its contentions are relying on,
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`despite there being allegations of multiple different versions of "Tradepad" that each functioned
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`differently. CQG also fails to identify and describe the functionality of a specific item of alleged
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`prior art that forms the basis for their "Tradepad" contentions, such as a specific publication
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`describing any version "Tradepad" or a specific instance of any version of "Tradepad" that was
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`allegedly offered for sale or publicly used/disclosed in the United States. Rather, CQG attempts
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`to avoid this requirement by defining some sort of overarching, amorphous "Tradepad" reference
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`that CQG pieces together based on a combination of different software, code, documents, and
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`testimony. This is improper and insufficient. Indeed, given that the alleged "Tradepad" module
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`was developed outside the United States and that any alleged use, disclosure, offer for sale,
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`and/or sale of a "Tradepad" module outside the United States does not qualify as prior art, it is
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`critical that CQG specifically identify what it is relying on.
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`Notably, while CQG defines its "Tradepad" reference to encompass software and code,
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`CQG also fails to specifically identify any actual software or code to support its "Tradepad"
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`contentions—let alone software or code that qualifies as prior art. For this additional reason,
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`CQG's "Tradepad" contentions violate Local Patent Rule 2.3(b).
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`While CQG does specifically identify other evidence to support its "Tradepad"
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`contentions, TT objects to CQG's reliance on much of this evidence. For instance, TT objects to
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`CQG's reliance on uncorroborated testimony from numerous self-interested witnesses (many of
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`which are current/former GL employees), because such testimony is insufficient as a matter of
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`law to support a finding of invalidity. Additionally, TT objects to CQG's reliance on any
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`"Tradepad" discovery that GL/Sungard has procured more recently in the related GL/Sungard
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`case, both because the Court's June 11, 2012 order (Dkt. 291) barred CQG from further
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`invalidity discovery and because GL/Sungard improperly obtained this discovery in violation of
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`the GL/Sungard Court's October 20, 2010 order (Case No. 05-4120, Dkt. 305) barring further
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`"Tradepad" discovery.
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`TT further notes that "Tradepad" has already been rejected as an invalidating reference on
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`multiple occasions. Indeed, despite the extensive discovery taken on the alleged "Tradepad"
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`module during the eSpeed case, the district court found on summary judgment that there was
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`insufficient evidence of a "Tradepad" software module ever being the subject of a commercial
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`offer for sale prior to the critical date that would qualify it as prior art. Case No. 04-5312, Dkt.
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`845. The jury in the eSpeed case then ultimately went on to find both that (1) at least the alleged
`
`“Tradepad” software module was not prior art. and (2) TT's patents were not anticipated or
`
`obvious in view of "Tradepad." See Case No. 04-5312, Dkt. 1061. The district court upheld the
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`jury's findings, and defendants did not even bother to appeal it. Case No. 04-5312, Dkt. 1140.
`
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`Then, during reexamination, the PTO considered essentially the same evidence and the same
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`contentions pertaining to "Tradepad" that CQG has made here, and the PTO confirmed that the
`
`'132 and '304 patents were patentable over "Tradepad." This is not surprising, because at best
`
`"Tradepad" is just cumulative of the references that were originally considered by the PTO.
`
`In view of this history alone, TT maintains that CQG cannot meet its burden of proving
`
`invalidity by clear and convincing evidence based on any of the alleged “Tradepad” references.
`
`Nevertheless, TT also separately denies that "Tradepad" can be used to invalidate TT's patents
`
`for the reasons set forth below.
`
`First, “Tradepad” does not even qualify as prior art. Indeed, there is nowhere close to
`
`clear and convincing evidence that any version of a "Tradepad" software module was
`
`(1) invented, known, or used by others in the United States before the invention date of TT’s
`
`patents or (2) publicly used, offered for sale, and/or sold in the United States prior to the critical
`
`date of TT's patents. Likewise, there is nowhere close to clear and convincing evidence that any
`
`publication describing "Tradepad" was disclosed outside of GL prior to the critical date of TT's
`
`patents. Thus, as explained in further detail in the below chart, CQG cannot meet its burden of
`
`proving that "Tradepad" qualifies as prior art.
`
`CQG's Contention
`CQG also incorporates the depositions of
`Gerard Varjacques, Laurent Havard, Marcel
`Tchichiyama, Bruno Spada, Mike Cartier,
`Christina Dobson, Fred Mastro, Jean-Cedric
`Jollant, and Mike Glista indicating that GL
`Win with TradePad was disclosed in printed
`publications prior to the critical date.
`
`TT's Response
`As an initial matter, TT notes that this contention
`fails to satisfy the level of specificity required by
`Local Patent Rule 2.3(b), because it fails to
`identify any specific publication that was
`allegedly disclosed prior to the critical date and
`also fails to identify any specific portion of any
`of these depositions that supports CQG's
`contention that "Tradepad" was disclosed in
`printed publications prior to the critical date.
`
`TT also notes that this contention relies on
`nothing other than uncorroborated testimony
`from interested witnesses (many of which are
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`current/former GL employees), which cannot
`form the basis for any contention that
`"Tradepad" qualifies as prior art.
`
`Regardless, the testimony of these witnesses
`fails to establish that "Tradepad" was disclosed
`in printed publications prior to the critical date.
`Indeed, several of these witnesses did not testify
`to having knowledge regarding any specific
`publication describing "Tradepad" that was
`distributed outside of GL (e.g., Ms. Dobson, Mr.
`Mastro, etc.). Further, to the extent any of these
`witnesses did testify to having knowledge
`regarding a specific publication describing
`"Tradepad" that was allegedly distributed
`outside of GL prior to the critical date, such
`witnesses were either unable to provide any
`specific details regarding this alleged
`distribution, or their testimony was later found to
`be inaccurate and unreliable (e.g., Mr. Glista).
`
`Notably, numerous other witnesses that would
`have been in position to receive publications
`describing "Tradepad" prior to the critical date
`have also given testimony and/or submitted
`declarations in this case (e.g., former GL
`customers), and these witnesses have testified to
`not recalling any publication describing
`"Tradepad" that was distributed outside of GL.
`Such witnesses include Dan Durkin, David Ellis,
`David Feltes, Nicholas Garrow, Elizabeth Gisch,
`James Krause, Elliott Lapan, William McHorris,
`John Restivo, Ralph Ristau, Mike Rivero, Gilles
`Santos, Jonathan Taylor, and Neil Trealor.
`
`Thus, for at least these reasons, CQG does not
`come close to meeting its burden of proving by
`clear and convincing evidence that "Tradepad"
`was disclosed in a printed publication prior to
`the critical date.
`
`In any event, even if "Tradepad" did qualify as
`prior art, it still fails to anticipate or render
`obvious any claim of TT's patents.
`As an initial matter, TT notes that this contention
`fails to satisfy the level of specificity required by
`
`GL Win with TradePad was also used,
`known by others, offered for sale, and sold
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` 
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`in the United States prior to the critical date.
`The names of the witnesses, testimony and
`documents relating to this is set forth in the
`depositions and documents identified in the
`May 25, 2007 letter from R. Perkins of
`eSpeed to R. Carden of TT, which CQG
`incorporates by reference. The TradePad
`was used, offered for sale, and/or sold to at
`least the following prior to the critical date:
`CME, Cargill Investor Services, Abn-Amro,
`Bear Stearns, BZW, Carr Futures, DE
`Trading, Deutschebank Futures, ED&F
`Man, Fimat, First Chicago Futures, HSBC,
`Hull Trading, ING Chicago, LIND
`Waldock, Marquette Partners, Refco, SMW,
`Spike, Tradelink, and Transmarket. CQG
`also incorporates the deposition and
`deposition exhibits of Varjacques, Havard,
`Jollant, Spada, Tchitchiama, Cartier, Glista,
`Malo, Mastro, Dobson, and CME, as well as
`the May 25, 2007 Letter from R. Perkins of
`eSpeed to R. Carden of TT as its further
`identification of those who used, offered for
`sale, and/or sold GL Win with TradePad.
`
`Local Patent Rule 2.3(b), because it fails to
`identify any specific public use, public
`disclosure, offer for sale, or sale of a specific
`instance of a "Tradepad" software module in the
`United States prior to the critical date, and also
`fails to identify any specific portion of any of
`these depositions or documents that support
`CQG's contention that a "Tradepad" software
`module was publicly used, publicly disclosed,
`offered for sale, and sold in the United States
`prior to the critical date.
`
`TT also notes that the evidence cited to support
`this contentio