`Case: 1:05-cv-04811 Document #: 749 Filed: 05/16/14 Page 1 of 3 PageID #:20521
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`Civil Action No. 05-4811
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`Judge Sharon Johnson Coleman
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`Magistrate Sidney I. Schenkier
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`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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`CQG, Inc. and CQGT, LLC
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`Defendants.
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`TRADING TECHNOLOGIES’ CROSS-MOTION FOR PARTIAL SUMMARY
`JUDGMENT THAT THE THAT THE “STATIC” LIMITATIONS MEET THE
`WRITTEN DESCRIPTION REQUIREMENT
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`Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Trading Technologies,
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` 
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`International, Inc., hereby cross-moves for partial summary judgment that:
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`1.
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`The term “static display of prices” as set forth in the claims of U.S. Patent
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`Nos. 6,772,132 (“‘132”) meets the written description requirement of 35 U.S.C.
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`§ 112; and
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`2.
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`The term “common static price axis” as set forth in the claims of U.S. Patent
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`No. 6,776,304 (“‘304”) meets the written description requirement of 35
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`U.S.C. § 112.
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`In support of its motion, TT is submitting a memorandum, a statement of undisputed material
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`facts under Local Rule 56.1, and exhibits. TT’s undisputed facts, set forth in TT’s Additional
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`Statement of Undisputed Material Facts in support of its Cross Motion for Summary
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`Judgment, establish that there is more than enough written description support for the “static
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`display of prices” and “common static price axis” terms in the provisional application
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`(which is mirrored by the specification of the patents-in-suit).
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`Page 1 of 398
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`TRADING TECH EXHIBIT 2013
`CQG & CQGT v. Trading Technologies
`CBM2015-00057
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`Case: 1:05-cv-04811 Document #: 749 Filed: 05/16/14 Page 2 of 3 PageID #:20522
`WHEREFORE, TT respectfully requests the entry of partial summary judgment
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`finding that the terms “common static price axis” and “static display of prices” as found in the
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`claims of the patents-in-suit meet the written description requirement.
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`Date: May 16, 2014
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`
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`By:
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` 
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`Respectfully submitted,
`
`s/ Jennifer M. Kurcz
`Leif R. Sigmond, Jr. (ID No. 6204980)
`(sigmond@mbhb.com)
`Matthew J. Sampson (ID No. 6207606)
`(sampson@mbhb.com)
`Michael D. Gannon (ID No. 6206940)
`(gannon@mbhb.com)
`S. Richard Carden (ID No. 6269504)
`(carden@mbhb.com)
`Jennifer M. Kurcz (ID No. 6279893)
`(kurcz@mbhb.com)
`Andrea K. Orth (ID No. 6301900)
`(orth@mbhb.com)
`McDonnell Boehnen Hulbert & Berghoff
`300 South Wacker Drive
`Chicago, Illinois 60606
`Tel.: (312) 913-0001
`Fax: (312) 913-0002
`
`
`
`Steven F. Borsand (ID No. 6206597)
`(Steve.Borsand@tradingtechnologies.com)
`Trading Technologies International, Inc.
`222 South Riverside
`Suite 1100
`Chicago, IL 60606
`Tel: (312) 476-1000
`Fax: (312) 476-1182
`Attorneys for Plaintiff, TRADING
`TECHNOLOGIES INTERNATIONAL, INC.
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`Page 2 of 398
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`Case: 1:05-cv-04811 Document #: 749 Filed: 05/16/14 Page 3 of 3 PageID #:20523
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`CERTIFICATE OF SERVICE
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`    
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` 
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`I certify that a copy of the foregoing TRADING TECHNOLOGIES’ CROSS-MOTION
`FOR PARTIAL SUMMARY JUDGMENT THAT THE “STATIC” LIMITATIONS MEET
`THE WRITTEN DESCRIPTION REQUIREMENT was served on May 16, 2014 as follows:
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` 
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`Via Filing Via this Court’s CM-ECF System, which caused a copy to be served on all
`registered users by E-mail:
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`Counsel for CQG, Inc., and CQGT, LLC:
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`Adam G. Kelly
`Loeb & Loeb LLP
`321 N. Clark Street,
`Suite 2300
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`Chicago, IL 60654
`akelly@loeb.com
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`Johnnet Simone Jones
`Loeb & Loeb LLP
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`321 N. Clark Street,
`Suite 2300
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`Chicago, IL 60654
`sjones@loeb.com
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`                          
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` 
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`s/ Jennifer M. Kurcz
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`William Joshua Voller
`Loeb & Loeb LLP
`321 N. Clark Street,
`Suite 2300
`Chicago, IL 60654
`wvoller@loeb.com
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`Page 3 of 398
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`

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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`)
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`TRADING TECHNOLOGIES
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`INTERNATIONAL, INC.
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`)
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`Plaintiff,
`
`)
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`
`
`
`
`)
`
`v.
`
`
`
`
`
`)
`
`
`
`
`
`
`
`)
`CQG, INC. AND CQGT, LLC.
`
`
`)
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`
`
`
`)
`
`
`
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`Defendants.
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`)
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`)
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`Civil Action No. 05-4811
`
`Judge Sharon Johnson Coleman
`
`Magistrate Sidney I. Schenkier
`
`
`FILED UNDER SEAL
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`TT’S COMBINED MEMORANDUM 1) IN OPPOSITION TO CQG’S MOTION FOR
`SUMMARY JUDGMENT THAT THE PATENTS-IN-SUIT ARE INVALID UNDER 35
`U.S.C. §112 FOR LACK OF WRITTEN DESCRIPTION; AND 2) IN SUPPORT OF ITS
`CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT THAT THE “STATIC”
`LIMITATIONS MEET THE WRITTEN DESCRIPTION REQUIREMENT
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`Page 4 of 398
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` 
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`TABLE OF CONTENTS
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`I.
`
`INTRODUCTION...............................................................................................................1
`
`II.
`
`ARGUMENT .......................................................................................................................2
`
`A.
`
`B.
`
`C.
`
`Legal Standards ...........................................................................................................2
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`The “Static” Terms As Construed..............................................................................4
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`TT’s Motion Should Be Granted Because The Static Terms Are Fully
`Supported By The Written Description Of The Patents-In-Suit .............................5
`
`D. CQG’S Motion That There Is No Written Description Support for “Static”
`Is Based On A Legally Flawed Argument and Must Be Denied..............................9
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`The Written Description Requirement Mandates Support For What
`Is Claimed, Not Support For All Features In The Accused Products .......12
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`1.
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`2.
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`Nothing in The Written Description or File History Requires
`“Static” To Include Non-Static Zones/All Price Levels Displayed ............15
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`III. CONCLUSION .................................................................................................................20
`
`ii
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`Page 5 of 398
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`TABLE OF AUTHORITIES
`
`
`Cases
`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313 (Fed. Cir. 2003) ...................3, 14, 15
`Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336 (Fed. Cir. 2010) ...............................2, 3, 4, 7
`Bilski v. Kappos, 130 S. Ct. 3218 (2010) .........................................................................................5
`Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555 (Fed. Cir. 1992) ......................4
`C.R. Bard, Inc. v. M3 Systems, Inc., 157 F.3d 1340 (Fed. Cir. 1998) .............................................6
`Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................2
`Cornell University v. Hewlett-Packard Co., 654 F. Supp. 2d 119 (N.D. N.Y. 2009) .............14, 16
`Crown Packaging Tech. v. Ball Metal Bev. Container Corp., 635 F.3d 1373 (Fed. Cir.
`2011) .......................................................................................................................................3, 17
`Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l, Inc., 246 F.3d 1336 (Fed.
`Cir. 2001) ...................................................................................................................................15
`Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93 F.3d 1572 (Fed. Cir. 1996) .................3, 16
`Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir. 2011) ...................................5
`ICU Medical, Inc. v. Alaris Medical Systems, Inc., 558 F.3d 1368 (Fed. Cir. 2009) ..............17, 18
`In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) ......................................................................................4
`Inline Connection Corp. v. AOL Time Warner, Inc., No. 02-272-MPT, 2007 WL 275928
`(D. Del. Jan. 29, 2007) ...............................................................................................................14
`Iridex Corp. v. Synergetics, Inc., 478 F. Supp. 2d 1146 (E.D. Mo. 2007) ..............................14, 16
`LizardTech, Inc. v. Earth Resources Mapping, Inc., 424 F.3d 1336 (Fed. Cir. 2005) ..................18
`Reiffin v. Microsoft Corp., 214 F.3d 1342 (Fed. Cir. 2000) ......................................................4, 17
`Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 647 F.3d
`1373 (Fed. Cir. 2011) .................................................................................................................20
`Smith & Nephew, Inc. v. Ethicon, Inc., 276 F.3d 1304 (Fed. Cir. 2001) .......................................15
`Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305 (Fed. Cir.
`2010) .............................................................................................................................................3
`Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316 (Fed. Cir. 2008) .......................................5
`Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362 (Fed. Cir. 2012)..............................19
`Trading Techs. Int'l, v. eSpeed, Inc., 595 F.3d 1340 (Fed. Cir. 2010) .........................................4, 6
`Tronzo v. Biomet, Inc., 156 F.3d 1154 (Fed. Cir. 1998) ..........................................................17, 18
`Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555 (Fed. Cir. 1991) ..........................................................4
`
`iii
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`Page 6 of 398
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`Statutes
`35 U.S.C. § 112 ............................................................................................................................... 3
`35 U.S.C. § 282 ............................................................................................................................... 4
`
`Rules
`FED. R. CIV. P. 56 ............................................................................................................................ 2
`M.P.E.P § 2106 ............................................................................................................................... 4
`
`iv
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`Page 7 of 398
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`I.
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`INTRODUCTION
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`Summary judgment for TT is appropriate because all of the recited claim elements of the
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`patents-in-suit are explicitly disclosed in the specification. With respect to the “static”
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`limitations, which have been construed as “a display of prices [a line] comprising price levels
`
`that do not change positions unless a manual re-centering [or re-positioning] command is
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`received,” the specification, by way of both text and drawings, provides extensive support for
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`this recited claim element. Indeed, Judge Moran and the parties expressly referenced the support
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`in the specification during the Court's construction of the “static” terms. Therefore, the
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`disclosure fully complies with the written description standard, i.e., whether persons of ordinary
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`skill in the art recognize that the inventors possessed what is claimed, and TT is entitled to
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`summary judgment in this regard.
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`On the other hand, CQG's motion must be denied. CQG ignores the proper legal standard
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`for written description support, instead premising its summary judgment motion entirely on an
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`incorrect standard, i.e. whether there is written description support for unclaimed, additional
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`features found in the accused products. CQG's motion hinges upon the declaration of its expert,
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`Dr. Mellor, who was led astray by the same legal error.1 Specifically, CQG and Dr. Mellor insist
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`that there is no support in the specification for a display having non-static zones. Dr. Mellor is
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`focused on non-static zones not because they are required by the claims, but rather because such
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`zones exist in the accused products. This misses the point because the claims as construed do
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`not require non-static zones. Nor is TT asserting literal infringement based on the presence of
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`non-static zones in CQG's product—TT is asserting literal infringement based on the fact that
`                                                            
`1 TT filed a motion to strike CQG’s expert’s report because the report misapplies this law, i.e., argues that
`written description support is lacking for failure to support what the claims cover instead of—what the
`claims require. Dkt. 591. Dr. Mellor's declaration in support of this motion suffers from the same legal
`error. If this Court grants TT’s motion to strike, CQG’s motion would be mooted by such a ruling.
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`1
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`Page 8 of 398
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`CQG's accused products have a static display of prices, which meets the court's construction.
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`The presence or absence of a non-static zone, which is the focus of CQG's motion, is completely
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`irrelevant to the sufficiency of the written description because unclaimed, additional features
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`need not be supported by the written description. Instead, the focus of the written description
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`inquiry is whether the recited claim elements find support in the patent specification. Thus, the
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`fact that CQG DOMTrader includes non-static zones on the top or bottom of a static display of
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`prices is just as irrelevant as the color of the static display of prices in its product. Finally,
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`CQG’s motion relies on the same opinions from Dr. Mellor as were previously set forth in his
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`expert report. This Court recently granted TT’s motion to strike that expert report. Accordingly,
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`CQG’s motion must be denied.
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`II.
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`ARGUMENT
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`A. Legal Standards
`
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`Summary judgment is appropriate when no genuine issue of material fact exists such that
`
`the moving party is clearly entitled to a judgment as a matter of law. FED. R. CIV. P. 56; Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In determining whether there is a genuine issue
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`of material fact, the court must draw all inferences and view all evidence in the light most
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`favorable to the non-moving party. Celotex, 477 U.S. at 324. The determination of whether a
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`disclosure meets the written description requirement is a question of fact. Ariad Pharm., Inc. v.
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`Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). Summary judgment that a
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`patent satisfies the written description requirement is appropriate when the court determines that
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`no reasonable jury could find invalidity, taking into account that defendants face the burden of
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`clear and convincing evidence to prove invalidity based on lack of written description. Crown
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`Packaging Tech. v. Ball Metal Bev. Container Corp., 635 F.3d 1373, 1380 (Fed. Cir. 2011).
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`2
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`Page 9 of 398
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`A patent’s specification meets the written description requirement of 35 U.S.C. § 112 so
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`long as it “reasonably conveys to those skilled in the art that the inventor had possession of the
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`claimed subject matter as of the filing date.” Ariad, 598 F.3d at1351 (emphasis added). In other
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`words, “the patentee need only describe the invention as claimed, and need not describe an
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`unclaimed method of making the claimed product.” Amgen Inc. v. Hoechst Marion Roussel, Inc.,
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`314 F.3d 1313, 1333 (Fed. Cir. 2003) (emphasis added). While the recited features set forth in
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`the claims must have adequate written description support, there is no need to provide support
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`for unrecited features. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93 F.3d 1572, 1582
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`(Fed. Cir. 1996) (explaining that a specification supports a claim that does not recite a feature yet
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`reads on a product that contains the feature); see also Spine Solutions, Inc. v. Medtronic Sofamor
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`Danek USA, Inc., 620 F.3d 1305, 1313 (Fed. Cir. 2010) (affirming lower court’s ruling denying
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`written description motion for summary judgment where claim recited “adapted to enter a
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`groove” but did “not cover the groove itself, applicants were not required to disclose grooves or
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`how grooves should be formed or cut.”).
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`To determine whether a disclosure meets the written description requirement, a court
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`must undertake “an objective inquiry into the four corners of the specification from the
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`perspective of a person of ordinary skill in the art.” Ariad, 598 F.3d at 1351. Courts often
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`consider expert testimony about how one skilled in the art would understand the specification to
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`assist with this inquiry. Trading Techs. Int'l, v. eSpeed, Inc., 595 F.3d 1340, 1360-61 (Fed. Cir.
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`2010). There is no requirement for an in haec verba disclosure and the written description
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`requirement is satisfied so long as a claim term is expressly, implicitly, or inherently disclosed in
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`the specification. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991); Reiffin v.
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`Microsoft Corp., 214 F.3d 1342, 1346 (Fed. Cir. 2000).
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`3
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`Page 10 of 398
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`An issued patent is statutorily presumed to be valid. See 35 U.S.C. § 282. This
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`presumption is based on “the expertise of patent examiners presumed to have done their job.”
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`Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574 (Fed. Cir. 1992). It is
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`the job of the Patent Office to make sure that applicants have complied with the written
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`description requirement. M.P.E.P § 2106; In re Bilski, 545 F.3d 943, 996-97 (Fed. Cir. 2008),
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`aff'd but criticized sub nom. Bilski v. Kappos, 130 S. Ct. 3218 (2010) (stating that “[t]he MPEP 
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`also requires examiners to identify all grounds of rejection in the first official PTO action to
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`avoid unnecessary delays in examination”). To overcome the presumption of validity of patents,
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`the challenger must prove invalidity by clear and convincing evidence and this burden never
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`shifts. Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1351 (Fed. Cir. 2011); Tech.
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`Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1329 (Fed. Cir. 2008).
`
`B. The “Static” Terms As Construed
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`In the coordinated Markman proceedings in eSpeed,2 the key terms at issue were the
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`“static” limitations, which occur in the independent claims of both of the patents-in-suit. For
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`example, Claim 1 of the ‘132 patent recites in part:
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`                                                            
`2 The CQG Defendants here participated in those coordinated Markman proceedings.
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`4
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`Page 11 of 398
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`TT SOF ¶ 14. Judge Moran construed “static display of prices” from the independent claims of
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`the ‘132 patent as “a display of prices comprising price levels that do not change positions unless
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`a manual re-centering command is received. Dkt. 105, at 6. Likewise, Judge Moran construed
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`“common static price axis” from the independent claims of the ‘304 patent as “a line comprising
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`price levels that do not change positions unless a manual re-centering command is received and
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`where the line of prices corresponds to at least one bid value and one ask value.” Id. Judge
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`Moran clarified that a “static display of prices”/”common static price axis” could move in
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`response to any type of manual movement or repositioning. In particular, he stated that “[o]ur
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`earlier constructions remain, and we clarify that the price axis never changes positions unless by
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`manual re-centering or re-positioning.” Dkt. 120, at 8; accord TT v. eSpeed, Inc., 595 F.3d 1340,
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`1353 (Fed. Cir. 2010). The Federal Circuit affirmed these constructions on appeal, which govern
`
`the present written description analysis.
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`Although this Court recently rejected CQG’s attempt to modify the construction of
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`“static” to require all prices (Dkt. 757, at 7), CQG’s present motion seeks to make the same
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`flawed argument in another way – contending that any claim that covers products with a static
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`price axis and also non-static zones/price levels is not supported.
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`C. TT’s Motion Should Be Granted Because The Static Terms Are Fully
`Supported By The Written Description Of The Patents-In-Suit
`
`As the claims have already been construed, the Court must use this construction (and not
`
`
`
`the accused products) to then determine whether the “static” limitations are supported by the
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`specification. C.R. Bard, Inc. v. M3 Systems, Inc., 157 F.3d 1340, 1360 (Fed. Cir. 1998)
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`(reversing jury verdict of invalidity based on written description where analysis was based on an
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`erroneous claim construction). The claim construction of the “static” terms from the eSpeed case
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`controls here. Dkt. 735, at 7.
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`5
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`Page 12 of 398
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`The specification is examined from the perspective of a person of ordinary skill in the art.
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`Ariad, 598 F.3d at 1351. Although TT and CQG dispute the level of skill attributable to such a
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`person of ordinary skill in the art (“POSITA”), the level of skill is not at issue here because it has
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`no impact on the outcome and TT prevails under either standard.3 As set forth below, the inquiry
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`is straightforward because the claimed “static” element is explicitly disclosed in the written
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`description. Indeed, CQG’s own expert admits that “static” is disclosed by the specification – an
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`admission that by itself supports granting TT’s motion. TT SOF ¶ 43.
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`
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`Both the provisional application and the specifications of the patents-in-suit are rife with
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`written description support for the “static” limitations, i.e., “a display of prices [line] comprising
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`price levels that do not change positions unless a manual re-centering [or re-positioning]
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`command is received.”.
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`
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` The provisional provides both text and drawing to support the “static” limitation. For
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`starters, the provisional states that the invention, known as Mercury, “displays a static vertical
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`column of prices… .” TT SOF ¶ 27. Multiple figures of the invention within the provisional
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`disclose “static”, and the provisional explains that “[t]he price column remained static, but the
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`corresponding bids and asks rose up the price column.” TT SOF ¶¶ 28-29.
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`                                                            
`3 CQG’s argument that the invention need not be interpreted from the perspective of the user is contrary
`to controlling law. See TT v. eSpeed, 04-cv-5312, Dkt. No. 963, at 2 (“As we have continually noted,
`however, plaintiff’s patents generally were written from the perspective of the user.”). In any event, TT’s
`POSITA is capable of both making and using the invention because TT’s definition requires that such
`person have two years designing and/or programming graphical user interfaces, including experience
`based on input from a person with knowledge of needs of an electronic trader. TT SOF ¶ 26.
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`6
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`Page 13 of 398
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`Again, the provisional discusses that “the market ascends or descends the price column….” TT
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`SOF ¶ 30. Further, the provisional discloses manual recentering. Id. Thus, the provisional alone
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`fully supports that the inventor possessed the “static” terms as construed at the time of the filing
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`of the provisional application. TT SOF ¶¶ 31-32. 
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`
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`Both the text and drawings from the specification of the patents-in-suit make the same
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`disclosure as the provisional application and show that the inventors had invented “a display
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`[line] of prices comprising price levels that do not change positions unless a manual re- centering
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`command is received [and where the line of prices corresponding to at least one bid value and
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`one ask value].” See TT SOF ¶ 36 ('132 patent at 7:29-31; '304 patent at 7:48-50 (“In the
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`preferred embodiment of the invention, the Mercury display is a static vertical column of prices .
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`. .”); '132 patent at 7:46; '304 patent at 7:65 (“The values in the price column are static . . .”)).
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`7
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`Page 14 of 398
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`Further, Figures 3 and 4 of the patents-in-suit are similar to the figures from the provisional
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`referenced above. Figures 3 and 4 of the patents-in-suit have been reproduced below:
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`
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`TT SOF ¶ 34. The patents-in-suit similarly explain that “in comparing FIGS. 3 and 4, it can be
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`seen that the price column remained static, but the corresponding bids and asks rose up the
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`price column.” TT SOF ¶ 35. Accordingly, the specification fully supports the “static”
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`limitations as construed, as Dr. Pirrong confirms in his declaration. TT SOF ¶ 32.  
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`As the claimed elements of a “static display of prices”/”common static price axis” are
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`expressly disclosed by the provisional, with the same disclosure repeated in the specification of
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`the patents-in-suit, no genuine issue of material fact exists and no reasonable jury could find that
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`the claims are invalid for lack of written description support. Although most written description
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`challenges involve a claim term that is not expressly disclosed in the specification (which may
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`still ultimately be found to be supported, as there is no in haec verba requirement for such
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`support), the present case is even easier to address because the claim term is explicitly in the
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`specification. Further, as described below in response to CQG’s summary judgment motion,
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`there are no unusual circumstances that would justify departing from the general rule that
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`disclosure of a claim element in the written description satisfies the written description
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`requirement. Accordingly, this Court should grant TT’s motion for partial summary judgment
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`that the “static” terms are supported by the written description.
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`D. CQG’S Motion That There Is No Written Description Support for
`“Static” Is Based On A Legally Flawed Argument and Must Be Denied
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`Earlier today, this Court granted TT’s motion to strike the expert report of CQG’s expert,
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`Dr. Mellor. Dkt. 748. Although this motion for summary judgment relies almost exclusively on
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`a Declaration from Dr. Mellor rather than his expert report, the Order striking Dr. Mellor’s
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`expert report should result in the denial of the present motion. In particular, Dr. Mellor testified
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`at his deposition that his opinions in the Declaration “are the same opinions that are included in
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`my expert report.” TT SOF ¶ 51. As the underlying report has been stricken, so too should the
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`same opinions as reflected in the Declaration be stricken. And, given that this Court must, in
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`resolving CQG’s motion, draw all inferences and view all evidence in the light most favorable to
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`TT as non-moving party, there is simply no reasonable possibility that CQG can prove that the
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`written description is deficient by clear and convincing evidence, especially where CQG’s
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`motion relies almost exclusively on Dr. Mellor’s opinions. Although this alone provides an
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`independent basis to deny CQG’s motion, TT addresses the substance of CQG’s motion, as
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`follows.
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`CQG and its expert ignore the relevant inquiry of whether there is written description
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`support for the invention as claimed and incorrectly pose the irrelevant question of whether the
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`written description supports unclaimed, additional features in the accused products. TT SOF ¶
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`45-46; Dkt. 712, at 15. Indeed, CQG's expert acknowledged this fatal error at his recent
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`deposition, where he admitted that he never analyzed whether there is written description support
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`for what is recited or required by the claims. TT SOF ¶ 46. Instead, he was asked to analyze,
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`and CQG’s motion is based on, whether there is written description support for a price column
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`where "some but not all" of the price levels are static.4 TT SOF ¶ 48. Put another way, CQG’s
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`argument is based on the opinion that there is no support for a price column that includes a zone
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`with a range of static price levels and other non-static zones. CQG's expert further
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`acknowledged that his analysis was based on what the claims might "cover" in the infringement
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`context. TT SOF ¶ 50. Because of these errors alone, CQG's motion should be denied.
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`As demonstrated in Section C above, under the proper analysis, there plainly is written
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`description support for the "static" terms as construed in this case. Moreover, CQG’s own expert
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`agrees that the written description shows static price levels, and the specification does not
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`require that all displayed price levels be static or disclaim the use of the disclosed static price
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`levels with additional non-static price levels. TT SOF ¶¶ 43-44. Therefore, under the proper
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`written description analysis, there is actually no dispute and TT is entitled to partial summary
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`judgment.
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`Instead of focusing on the proper analysis, CQG focuses on a price column where "some
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`but not all" of the price levels are static, because TT has accused CQG’s DOMTrader product of
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`infringement. CQG’s expert characterized CQG's DOMTrader as having a price column where
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`some but not all price levels are static. In particular, as described by CQG’s expert, CQG’s
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`                                                            
`4 CQG's expert, Dr. Mellor, as one might expect, is not familiar with the proper legal definition of the
`written description requirement. Instead, his analysis went astray because CQG's counsel defined his task
`improperly, i.e., he was asked to opine as to whether there is written description support for a price
`column where "some but not all" of the price levels are static. TT SOF ¶ 48.
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`DOMTrader is “Trifurcated”5 in its default setting, having three parts: 1) a middle zone with a
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`static display of prices or a static price axis6; 2) a top, non-static zone; and 3) a bottom, non-static
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`zone. TT SOF ¶ 57. The non-static zones are areas in which a “Market Window” may appear,
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`either on the top or bottom of the static display of prices. However, the addition of the top and
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`bottom non-static zones does not affect the functionality of the static display of prices/static price
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`axis in the middle zone of the screen.
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`The Market Window, as CQG refers to this feature in its manuals, is merely an additional
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`window that may appear in the non-static zones of the DOMTrader whenever the best bid or best
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`ask in the market would otherwise go off of the screen. TT SOF ¶ 59. For many years, a trader
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`could not even place an order in the Market Window, which simply serves as a viewer window
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`for the user to track the inside market. TT SOF ¶ 60. Like the presence of the non-static zones
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`themselves, the appearance of a Market Window in the DOMTrader has no effect on the
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`functionality of the price axis in the middle zone, which is “static.” TT SOF ¶ 61. TT’s
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`infringement contentions have repeatedly identified the static display of prices in the middle
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`zone as forming the basis for infringement. Cf. CQG Br. at 6; TT SOF ¶ 62. In internal emails,
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`CQG’s former patent trial counsel even acknowledged that TT’s infringement contention on the
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`DOMTrader is “fairly persuasive.”7 TT SOF ¶ 63.
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`The “Trifurcated” DOMTrader is no different from TT’s patented invention except that it
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`                                                            
`5 CQG’s expert, Dr. Mellor, initially coined the term, “Trifurcated” to describe TT’s argument with
`respect to the three distinct parts of the DOMTrader in his first expert report regarding the written
`description issue.  
`6 The middle zone is in a “static” mode when a price is selected by a user. In most versions, a user may
`also configure the Market Window to be larger than the DOMTrader, and thus disable any Market
`Windows from appearing. Under this setting, the entire price scale is a static price axis.
`7 Mr. Fischer later became head of marketing at CQG. When he served as trial counsel he was unaware
`that the product worked such that it included the middle zone of static price levels. TT SOF ¶ 65. He
`thought all of the price levels were not static. Id.
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`includes additional, unclaimed features. For example, the picture below compares Figure 3 of
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`TT’s patented invention against CQG’s DOMTrader and shows that DOMTrader has a static
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`display of prices identical to that of Figure 3. The only difference is that the DOMTrader has
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`extra features on the top and bottom that are not static, i.e., where a Market Window may appear
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`to display the inside market.
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`1. The Written Description Requirement Mandates Support For
`What Is Claimed, Not Support For All Features In The Accused
`Products
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`CQG’s motion incorrectly focuses on the functionality of the accused product and not on
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`the only relevant inquiry – whether there is written description support for what is claimed. It is
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`indisputable that the claims do not recite non-static zones and do not recite a price column that
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`includes a range of