Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 05-cv-1584 REB-OES
`______________________________________________________________________
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`CQGT, LLC, a Colorado limited liability company; CQG, INC., a Colorado corporation,
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`Plaintiffs,
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation,
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`Defendant.
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`FIRST AMENDED COMPLAINT
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`Plaintiffs CQGT, LLC and CQG, Inc., through their attorneys Faegre & Benson
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`LLP, pursuant to Fed. R. Civ. P. 15(a), submit this First Amended Complaint against
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`Defendant Trading Technologies International, Inc., and state as follows:
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`PARTIES
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`1.
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`Plaintiff CQGT, LLC is a Colorado limited liability company, with its
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`principal place of business in Denver, Colorado. Plaintiff CQG, Inc. is a Colorado
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`corporation, with its principal place of business in Denver, Colorado. Plaintiffs CQGT,
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`LLC and CQG, Inc. shall be referred to herein collectively as Plaintiffs.
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`2.
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`Defendant Trading Technologies International, Inc. is a Delaware
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`corporation, with its principal place of business in Chicago, Illinois. Defendant Trading
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`Technologies International, Inc. shall be referred to herein as TT.
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`CQG EXHIBIT
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`1015
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 05-cv-1584 REB-OES
`______________________________________________________________________
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`CQGT, LLC, a Colorado limited liability company; CQG, INC., a Colorado corporation,
`
`Plaintiffs,
`
`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation,
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`Defendant.
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`FIRST AMENDED COMPLAINT
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`Plaintiffs CQGT, LLC and CQG, Inc., through their attorneys Faegre & Benson
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`LLP, pursuant to Fed. R. Civ. P. 15(a), submit this First Amended Complaint against
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`Defendant Trading Technologies International, Inc., and state as follows:
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`PARTIES
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`1.
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`Plaintiff CQGT, LLC is a Colorado limited liability company, with its
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`principal place of business in Denver, Colorado. Plaintiff CQG, Inc. is a Colorado
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`corporation, with its principal place of business in Denver, Colorado. Plaintiffs CQGT,
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`LLC and CQG, Inc. shall be referred to herein collectively as Plaintiffs.
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`2.
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`Defendant Trading Technologies International, Inc. is a Delaware
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`corporation, with its principal place of business in Chicago, Illinois. Defendant Trading
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`Technologies International, Inc. shall be referred to herein as TT.
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`CQG EXHIBIT
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`1015
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 2 of 11
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`JURISDICTION AND VENUE
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`3.
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` The Court has subject matter jurisdiction over this case pursuant to 28
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`U.S.C. §§ 1331 and 1338, because this case presents a well-pleaded federal question
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`under the Antitrust laws of the United States, 15 U.S.C. § 2; the Patent Act of 1952 (as
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`amended), 35 U.S.C. §§ 1, et seq.; and the Federal Declaratory Judgments Act, 28
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`U.S.C. §§ 2201 and 2202. The Court also has supplemental jurisdiction over the state
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`law claims in this case pursuant to 28 U.S.C. § 1367(a).
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`4.
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`The exercise of in personam jurisdiction over TT comports with the laws of
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`the State of Colorado and the constitutional requirements of due process because, upon
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`information and belief, TT and/or its agents transact business and/or offer to transact
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`business within the State of Colorado.
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`5.
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`6.
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`7.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391.
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`There are no current related actions in this District.
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`GENERAL ALLEGATIONS
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`On July 20, 2004, the Commissioner for Patents with the United States
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`Patent and Trademark Office issued U.S. Patent No. 6,766,304 (“the ’304 Patent”)
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`claiming a method and system for “Click Based Trading With Intuitive Grid Display of
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`Market Depth.” A true and correct copy of the ’304 Patent is attached as Exhibit A and
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`incorporated herein.
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`8.
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`On August 3, 2004, the Commissioner for Patents with the United States
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`Patent and Trademark Office issued U.S. Patent No. 6,722,132 (“the ’132 Patent”) also
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`claiming a method and system for “Click Based Trading With Intuitive Grid Display of
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 2
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`0002
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 3 of 11
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`Market Depth.” A true and correct copy of the ’132 Patent is attached as Exhibit B and
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`incorporated herein.
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`9.
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`Upon information and belief, TT is the assignee of the ’304 Patent and the
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`’132 Patent.
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`10. CQG, Inc. was established in 1980 to supply data and market analysis to
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`futures traders. CQG, Inc. has, in the past, developed and sold computer programs and
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`user interfaces which allows traders to view futures trading data and to analyze that
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`data.
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`11.
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`The computer programs developed and sold by CQG, Inc. include both (1)
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`single click-based computer programs and (2) multiple click-based computer programs.
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`Both of these types of computer programs sold by CQG, Inc. allow traders to place
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`orders and otherwise trade futures.
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`12. CQGT, LLC is a company which owns and develops the intellectual
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`property which forms the basis for the computer programs and user interfaces sold by
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`CQG, Inc.
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`13.
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`TT has asserted that Plaintiffs’ manufacture and offering for sale and
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`selling of Plaintiffs’ products constitutes infringement and/or contributory infringement of
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`the ’304 Patent and ’132 Patent and all claims thereof. By charging Plaintiffs with
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`infringement of the ’304 Patent and ’132 Patent, TT’s actions have created in Plaintiffs a
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`reasonable apprehension of suit.
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`14. Representatives of TT have also told representatives of Plaintiffs that TT
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`will file suit against Plaintiffs unless Plaintiffs agree to the terms of a “Settlement
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 3
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`0003
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 4 of 11
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`Agreement.” During discussions regarding this “Settlement Agreement,”
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`representatives of TT asserted that Plaintiffs’ single click-based computer programs
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`infringe TT’s Patents, while admitting that TT’s Patents do not cover the multiple click-
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`based computer programs developed by Plaintiffs. Plaintiffs ultimately determined that
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`they could not agree to the terms of the any such “Settlement Agreement.”
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`15.
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`Therefore, a substantial and continuing justiciable controversy exists
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`between Plaintiffs and TT as to the validity and scope of the ’304 Patent and ’132
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`Patent, and as to whether any of Plaintiffs’ products infringe any valid claim thereof.
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`16. Since Plaintiffs have refused to agree to the terms of TT’s “Settlement
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`Agreement,” TT has sued Plaintiffs for patent infringement in the United States District
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`Court for the Northern District of Illinois. Upon information and belief, TT has also
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`begun contacting Plaintiffs’ customers who employ CQG’s multiple click-based
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`computer programs. TT has charged these customers with infringement of TT’s
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`Patents, while knowing that TT’s Patents do not cover these products.
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`FIRST CLAIM FOR RELIEF
`Declaratory Judgment of Non-Infringement and Invalidity of the ’304 and ’132 Patents
`28 U.S.C. § 2201
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`17. Plaintiffs hereby incorporate by reference Paragraphs 1 through 16 of this
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`Complaint, as if fully set forth herein.
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`18. Plaintiffs have not infringed or committed contributory infringement of any
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`claims of the ’304 Patent or ’132 Patent by making, using, selling, offering for sale,
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`distributing and/or importing any product, or by practicing any process.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 4
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`0004
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 5 of 11
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`19. Upon information and belief, Plaintiffs allege that the ’304 Patent and ’132
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`Patent, and each and every respective claim thereof, are invalid and unenforceable for
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`failure to comply with one or more provisions of Title 35 of the United States Code,
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`including without limitation, Sections 101, 102, 103, and/or 112.
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`20.
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`TT’s charges of infringement of the ’304 Patent and ’132 Patent with full
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`knowledge of the invalidity of the ’304 Patent and ’132 Patent makes this an exceptional
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`case warranting an award of Plaintiffs’ reasonable attorney’s fees and costs under 35
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`U.S.C. § 285.
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`SECOND CLAIM FOR RELIEF
`Declaratory Judgment of Patent Misuse
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`21. Plaintiffs hereby incorporate by reference Paragraphs 1 through 20 of this
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`Complaint, as if fully set forth herein.
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`22. During discussions regarding TT’s “Settlement Agreement,”
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`representatives of TT admitted to representatives of Plaintiffs that Plaintiffs’ products
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`that employ multiple click-based trading software do not infringe the claims of the ‘304
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`Patent and ‘132 Patent.
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`23. Upon information and belief, TT has contacted Plaintiffs’ customers and
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`charged that their use of Plaintiffs’ products that employ multiple-click based trading
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`software does in fact infringe the claims of the ‘304 and ‘132 Patents.
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`24.
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`TT’s attempts to assert the claims of the ’304 Patent and ’132 Patent
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`against Plaintiffs’ customers using products that do not infringe the claims of the ’304
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`Patent and ’132 Patent, while knowing that the claims of the ’304 Patent and ’132
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 5
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`0005
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 6 of 11
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`Patent do not cover these products, constitute an attempt to extend TT’s rights beyond
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`the claims of the Patents and constitutes patent misuse.
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`25.
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`TT’s wrongful acts of patent misuse impermissibly broaden the scope of
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`the ’304 Patent and ’132 Patent with anticompetitive effect, and thus render the ’304
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`Patent and ’132 Patent unenforceable.
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`THIRD CLAIM FOR RELIEF
`Violation of Sherman Act, 15 U.S.C. § 2
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`26. Plaintiffs hereby incorporate by reference Paragraphs 1 through 25 of this
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`Complaint, as if fully set forth herein.
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`26. Plaintiffs, TT and their competitors are engaged in interstate commerce
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`and their activities substantially affect interstate commerce. TT conducts business with
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`purchasers and licensees of computer programs and electronic trading software which
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`allow traders to place orders and otherwise trade futures.
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`27. Software for electronically trading futures contracts on major futures
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`exchanges is a relevant product market, and subsets of this market may also be
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`relevant markets. TT has market power in this relevant product market.
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`28.
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`TT is attempting to monopolize the market for electronic trading software
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`used on major futures exchanges, and submarkets thereof, by charging Plaintiffs’
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`customers who employ multiple click-based trading software with infringement of TT’s
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`Patents, while knowing that these customers do not infringe TT’s Patents. TT’s
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`baseless charges of infringement conceal an attempt to interfere directly with CQG’s
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`business relationships as an anticompetitive weapon.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 6
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`0006
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 7 of 11
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`29.
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`These anticompetitive acts present a dangerous probability that TT will
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`achieve an unlawful monopoly, and constitute a violation of Section 2 of the Sherman
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`Act, 15 U.S.C. § 2.
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`30.
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`TT’s attempted monopolization of the electronic trading software market
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`has damaged Plaintiffs’ ability to compete in the relevant market. TT’s attempted
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`monopolization of the electronic trading software market has also damaged the
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`competitive process and consumers by reducing competition in the market, limiting
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`consumer choice by artificially removing potentially competitive software from the
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`market through baseless charges of infringement.
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`FOURTH CLAIM FOR RELIEF
`Violation of Colorado Antitrust Act, C.R.S. § 6-4-105
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`31. Plaintiffs hereby incorporate by reference Paragraphs 1 through 30 of this
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`Complaint, as if fully set forth herein.
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`32. Plaintiffs, TT and their competitors are engaged in trade and commerce
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`and their activities substantially affect trade and commerce. TT conducts business with
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`purchasers and licensees of computer programs and electronic trading software which
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`allow traders to place orders and otherwise trade futures.
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`33.
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`TT has violated the Colorado Antitrust Act by attempting to monopolize the
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`market for electronic trading software used on major futures exchanges, and
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`submarkets thereof, by charging Plaintiffs’ customers who employ multiple click-based
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`trading software with infringement of TT’s Patents, while knowing that these customers
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`do not infringe TT’s Patents. TT’s baseless charges of infringement conceal an attempt
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`to interfere directly with CQG’s business relationships as an anticompetitive weapon.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 7
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`0007
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 8 of 11
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`34.
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`TT’s attempted monopolization of the electronic trading software market
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`has damaged Plaintiffs’ ability to compete in the relevant market. TT’s attempted
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`monopolization of the electronic trading software market has also damaged the
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`competitive process and consumers by reducing competition in the market, limiting
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`consumer choice by artificially removing potentially competitive software from the
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`market through baseless charges of infringement.
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`FOURTH CLAIM FOR RELIEF
`Violation of Colorado Consumer Protection Act, C.R.S. § 6-1-101, et seq.
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`35. Plaintiffs incorporate by reference Paragraphs 1 through 34 of this
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`Complaint, as if fully set forth herein.
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`36.
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`TT’s attempts to assert the claims of the ’304 Patent and ’132 Patent
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`against Plaintiffs’ customers using multiple click-based trading products that do not
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`infringe the claims of the ’304 Patent and ’132 Patent, while knowing that the claims of
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`the ’304 Patent and ’132 Patent do not cover these products, constitute a violation of
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`the Colorado Consumer Protection Act by disparaging Plaintiffs’ products by false or
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`misleading representation of fact.
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`37.
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`TT’s conduct has occurred in the course of TT’s business, and has
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`significantly impacted the public as actual or potential consumers of TT’s property or
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`goods.
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`38. Plaintiffs have suffered damages by TT’s violation of the Colorado
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`Consumer Protection Act.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 8
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`0008
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 9 of 11
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs pray that this Court enter judgment in favor of Plaintiffs
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`and against Defendant as follows:
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`A.
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`A Declaratory Judgment be entered declaring that Defendant is without
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`right or authority to threaten or to maintain suit against Plaintiffs or their customers for
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`alleged infringement of U.S. Patent No. 6,766,304 or U.S. Patent No. 6,722,132 and:
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`1.
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`United States Patent No. 6,766,304 is invalid, unenforceable, and
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`not infringed by Plaintiffs; and
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`2.
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`United States Patent No. 6,722,132 is invalid, unenforceable, and
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`not infringed by Plaintiffs.
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`B.
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`A Declaratory Judgment be entered declaring that Defendant’s wrongful
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`acts of patent misuse render U.S. Patent No. 6,766,304 or U.S. Patent No. 6,722,132
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`unenforceable until such time as the misuse has been purged.
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`C.
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`An award of damages in an amount to be determined by the jury, but in no
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`event less than an amount sufficient to compensate Plaintiffs for their damages, trebled
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`pursuant to the antitrust laws of the United States, and the laws of Colorado.
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`D.
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`A permanent injunction prohibiting TT from engaging in further
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`anticompetitive conduct.
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`E.
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`An award of reasonable attorney’s fees and costs incurred by Plaintiffs in
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`the litigation of this matter in compensation for the exceptional circumstances of this
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`case, pursuant to 35 U.S.C. § 285.
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`F.
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`Such other relief as the Court may deem just and proper to award.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 9
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`0009
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 10 of 11
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`JURY DEMAND
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`Plaintiffs hereby demand a trial by jury on all issues so triable.
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`Dated: November 22, 2005.
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`FAEGRE & BENSON LLP
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`By:
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`s/ Mark W. Fischer
`Mark W. Fischer
`Jared B. Briant
`1900 15th Street
`Boulder, Colorado 80302
`Telephone: (303) 447-7700
`Facsimile: (303) 447-7800
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`E-mail: mfischer@faegre.com
` jbriant@faegre.com
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`ATTORNEYS FOR PLAINTIFFS
`CQGT, LLC and CQG, INC.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 10
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`00010
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`Case 1:05-cv-01584-REB-MEH Document 17 Filed 11/22/05 USDC Colorado Page 11 of 11
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`CERTIFICATE OF SERVICE (CM/ECF)
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`I hereby certify that on November 22, 2005, I electronically filed the foregoing
`FIRST AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system
`which will send notification of such filing to the following persons at the given email
`addresses:
`
`Leif R. Sigmond, Jr. - sigmond@mbhb.com
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606
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`Peter Attila Gergely – pgergely@merchant-gould.com
`Merchant & Gould, P.C.-Colorado
`1050 17th Street, #1950
`Denver, CO 80265-0100
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`s/ Mark W. Fischer ________
`Mark W. Fischer
`1900 15th Street
`Boulder, Colorado 80302
`Telephone: (303) 447-7700
`Facsimile: (303) 447-7800
`mfischer@faegre.com
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` ATTORNEYS FOR PLAINTIFFS
` CQGT, LLC and CQG, Inc.
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`Civil Action No. 05-cv-01584-REB-OES FIRST AMENDED COMPLAINT
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`Page 11
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`00011
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