Case 1:04-cv-05312· Document 963
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`Filed 09/12/2007 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DMSION
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`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.,
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`Plaintiff,
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`vs.
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`eSPEED, INC., eSPEED, INTERNATIONAL,)
`LTD., and ECCO WARE, LTD.,
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`No. 04 C 5312
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`IT brings this motion in limine to preclude eSpeed from contradicting the court's
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`"single action" tonstrudion, requesting that we prcdude expert testimony, arguing that the
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`term 1'single action" can cover {I) any number of user actions so long as they are performed
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`in a "short period of time''; (ii) the order entry process of the alleged Tokyo Stock Exchange
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`("TSE") prior art; and (iii) a screen which requires that a user click on a screen and move a
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`cursor to dick on a button in a pop-up window to send an order. Essentially, TT argues that
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`a product requiring (1) clicking or double clicking on an order entry screen; (2) typing a
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`quantity in an order ticket that pops up; and (3) clicking on a send button within the order
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`ticket to send the order cannut come within our construction of "single action order entry
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`region." Therefore, TT contends, eSpeed sbould not be able to introduce its argument at trial.
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`eSpeed fails to respond to the substance ofTT's motion. Rather, eSpeed focuses on the
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`process underlying a patent infringement suit. That process, eSpeed points out, involves two
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`separate and distinct steps: (1) claim construction (i.e., what do the claims mean?); and (2)
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`applying the construed claims to the prior art. eSpeed is perfectly right - there are two
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`elements of a patent case, construing the patent and detennining whether infringement
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`occurred. Markman v. Westview Instruments, Inc., 517 U.S. 370, 384 (1996). In fact, the
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`TRADING TECH EXHIBIT 2004
`TD Ameritrade v. Trading Technologies
`CBM2014-00136
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`Page 1 of 4
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`Case 1 :04-cv-05312 Document 963
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`Filed 09/12/2007 Page 2 of 3
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`No.04 C 5312
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`Pagel
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`Supreme Court supports eSpeed's argument that the first inquiry is a question of law to be
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`determined by the tourt and the setond inquiry is a question of fact to be submitted to a jury.
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`ld. In fact, the Federal Circuit has guided us. to "provide the jury in a patent case with
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`instructions adequate to ensure that the jury fully understands the court's daim construdion
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`rulings and what the patentee covered by the claims." Sulzer Textil A.G. v. Picanol N.V., 358
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`F.3d 1356, 1366 (Fed.Cir.2004).
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`Although eSpeed ~orre~tly states the process of a patent infringement trial, we think
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`this presents a spedal circumstllnce. In our daim construction ruling, we construed "single
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`action of a user input device'' to be ''an action by a user within a short period of time that may
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`comprise one or more clicks of a mouse button or other input device." Tradin2 Tecbnoloeies
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`Int'l. Inc. v. eSpeed. Inc., 2006 WL 3147697, *8 (N.D.lll.2006) (''Claim Construction"). We
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`went on to explain:" As we have continually noted, however, plaintiff's patents generally were
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`written from the perspective of the user. Therefore, this claim refers to the user's single action,
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`not the action(s) the computer performs to execute the user's command," ld. We made it very
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`clear that, from the perspective of the user, 8 single action had to be just that- a single action.
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`We think it is very clear that 8 double click, followed by entry of a quantity, followed by an
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`"enter'' (as desc:ribed by eSpeed's attorney Mr. Perkins) is not a single action under our
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`construction.
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`While such is generally a decision left to the jury, we pause to recognize the complexity
`ofthis case and the difficulty the jurors wm encounter in attempting to keep track of all of the
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`different features and arguments. The parties have no lack of theories, especially when it
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`comes to invalidity and prior art. Therefore, as we are convinced that it would be impossible
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`for a reasonable jury to rmd that the three steps described by eSpeed's attorney could fit into
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`Case 1 :04-cv-05312 Document 963
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`Filed 09/12/2007 Page 3 of 3
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`Nu,04C53tl
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`Page3
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`our definition of single action, we grant TT's motion to exdude evidence that it does. 1 Rather
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`than throw a non-starter at the jury or deal with this issue during post-trial motion practi.ce,
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`we exclude the evidence from the start. Although our decision is nearly akin to a partial
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`summary judgment ruling, we are convinced that it is correct, it will save precious judicial
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`resources, and simplify the case for the jury. See Colassj v, Cybex Int'l.. Inc., 2007 WL
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`490969, "'3 (Fed.Cir.2007) (unpublished Federal Circuit opinion finding that district court did
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`not abuse its discretion in granting plaintiff's motion in limine to preclude competitor from
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`arguing non-infringement under the reverse doctrine of equ~alents even though it was a "de
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`facto summary judgment"). TT's motion is granted in part.
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`$: r ,·
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`~' /d-· , 2007.
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`1 We limit our ruling to exclusion of evidence of a prior art '~single action" feature that
`requires a double click, entry of a quantity, and an enter by the user. Because of the unusual
`nature of our detennination, we reject TI's request that we go any further. Specifically, we
`reject TT's request that we exclude expert testimony that ''single action" can cover a screen
`which requires that a user click on a screen and move a cursor to click on a button in a pop-up
`window to send an order. IT can argue its case to the jury and we will, per the guidance of the
`Federal Circuit, submit detailed claim construction instructions to the jury.
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`Page 3 of 4
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`Or<!ar Form (01/l~)
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`Filed 09/12/2007 Page 1 of 1
`Case 1 :04-cv-05312 Document 962
`United States District Court, Northern District of Illinois
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`James B. Moran
`04 c 5312
`TRADING TECHNOLOGIES INTERNATIONAL, INC. Vs. ESPEED, INC., et al
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`DATE
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`9/12/2007
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`Sitting Jud&e If Oth.,r
`than Asslgnild J11dg11
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`N11me of i\nl11ned Jud11e
`or MaJ:Isfn te Jud11e
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`Enter Memorandum Opinion And Order. TT's motion in Jimine to preclude eSpeed from contradicting the
`court's "single action" construction, requesting that we preclude expert testimony, arguing that the tenn
`"single action,, can cover (I) any number of user actions so long as they are perfonned in a "short period of
`time" [943] is granted in part.
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`···'
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`'•
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`• (For further detail see separate ordor(s).]
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`Docketins lu mall notio::cs.
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`Courtroom Deputy I
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`Initial!;:
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`LG
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`04C5312 TRADING TECHNOLOGIES INTERNATIONAL, INC. Vs. ESPEED, INC., et al
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