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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 05-cv-4811
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`Judge Sharon Johnson Coleman
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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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`MEMORANDUM OPINION AND ORDER
`CQG, Inc. and CQGT, LLC (collectively “CQG”), moves for summary judgment [709]
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`based on invalidity of the patents-in-suit due to lack of written description under 35 U.S.C. § 112.
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`For the reasons stated below, this Court denies the motion.
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`Background
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`
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`The following facts are undisputed for purposes of this motion. There are two patents-in-
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`suit: U.S. Patent No. 6,766,304 (“the ‘304 patent”) and U.S. Patent No. 6,772,132 (“the ‘132
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`patent”). Although the patents-in-suit have different claims, they share a common written
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`description except that the ‘304 patent indicates that it is a divisional application of Ser. No.
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`09/590,962. (Dkt. 752, TT’s 56.1(b)(3) Responses to CQG’s SOF at ¶ 6).
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`
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`The ‘304 patent includes two independent claims: claims 1 and 27. Claim 1 of the ‘304 patent
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`provides:
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`1. A method for displaying market information relating to and facilitating trading of a
`commodity being traded in an electronic exchange having an inside market with a
`highest bid price and a lowest ask price on a graphical user interface, the method
`comprising:
`dynamically displaying a first indicator in one of a plurality of locations in a bid
`display region, each location in the bid display region corresponding to a
`
`TRADING TECH EXHIBIT 2014
`CQG & CQGT v. Trading Technologies
`CBM2015-00057
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`Page 1 of 11
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`Case: 1:05-cv-04811 Document #: 889 Filed: 01/20/15 Page 2 of 11 PageID #:27370
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`price level along a common static price axis, the first indicator representing
`quantity associated with at least one order to buy the commodity at the
`highest bid price currently available in the market;
`dynamically displaying a second indicator in one of a plurality of locations in an ask
`display region, each location in the ask display region corresponding to a
`price level along the common static price axis, the second indicator
`representing quantity associated with at least one order to sell the commodity
`at the lowest ask price currently available in the market;
`displaying the bid and ask display regions in relation to fixed price levels positioned
`along the common static price axis such that when the inside market
`changes, the price levels along the common static price axis do not move and
`at least one of the first and second indicators moves in the bid or ask display
`regions relative to the common static price axis;
`displaying an order entry region comprising a plurality of locations for receiving
`commands to send trade orders, each location corresponding to a price level
`along the common static price axis; and in response to a selection of a
`particular location of the order entry region by a single action of a user input
`device, setting a plurality of parameters for a trade order relating to the
`commodity and sending the trade order to the electronic exchange. (Dkt. 752
`at ¶ 8).
`
`
`Claim 27 of the ‘304 patent states:
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`27. A computer readable medium having program code recorded thereon for
`execution on a computer for displaying market information relating to and
`facilitating trading of a commodity being traded in an electronic exchange having an
`inside market with a highest bid price and a lowest ask price on a graphical user
`interface, the program code causing a machine to perform the following method
`steps:
`dynamically displaying a first indicator in one of a plurality of locations in a bid
`display region, each location in the bid display region corresponding to a
`price level along a common static price axis, the first indicator representing
`quantity associated with at least one order to buy the commodity at the
`highest bid price currently available in the market;
`dynamically displaying a second indicator in one of a plurality of locations in an ask
`display region, each location in the ask display region corresponding to a the
`price level along the common [s]tatic price axis, the second indicator
`representing quantity associated with at least one order to sell the commodity
`at the lowest ask price currently available in the market;
`displaying the bid and ask display regions in relation to fixed price levels positioned
`along the common static price axis such that when the inside market
`changes, the price levels along the common static price axis do not move and
`at least one of the first and second indicators moves in the bid or ask display
`regions relative to the common static price axis; displaying an order entry
`region comprising a plurality of locations for receiving commands to send
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`Page 2 of 11
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`trade orders, each location corresponding to a price level along the common
`static price axis; and
`in response to a selection of a particular location of the order entry region by a single
`action of a user input device, setting a plurality of parameters for a trade
`order relating to the commodity and sending the trade order to the electronic
`exchange. (Dkt. 752 at ¶ 9).
`
`The ‘132 patent includes three independent claims: claims 1, 8, and 14. Claim 1 of the ‘132
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`
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`patent states:
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`1. A method of placing a trade order for a commodity on an electronic exchange
`having an inside market with a highest bid price and a lowest ask price, using a
`graphical user interface and a user input device, said method comprising:
`setting a preset parameter for the trade order[;]
`displaying market depth of the commodity, through a dynamic display of a plurality
`of bids and a plurality of asks in the market for the commodity, including at
`least a portion of the bid and ask quantities of the commodity, the dynamic
`display being aligned with a static display of prices corresponding thereto,
`wherein the static display of prices does not move in response to a change in
`the inside market;
`displaying an order entry region aligned with the static display prices comprising a
`plurality of areas for receiving commands from the user input devices to send
`trade orders, each area corresponding to a price of the static display of prices;
`and
`selecting a particular area in the order entry region through single action of the user
`input device with a pointer of the user input device positioned over the
`particular area to set a plurality of additional parameters for the trade order
`and send the trade order to the electronic exchange. (Dkt. 752 at ¶ 11).
`
`
`Claim 8 of the ‘132 patent states:
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`8. A computer readable medium having program code recorded thereon, for
`execution on a computer having a graphical user interface and a user input device, to
`place a trade order for a commodity on an electronic exchange having an inside
`market with a highest bid price and a lowest ask price, comprising:
`a first program code for setting a preset parameter for the trade order;
`a second program code displaying market depth of a commodity, through a dynamic
`display of a plurality of bids and a plurality of asks in the market for the
`commodity, including the bid and ask quantities of the commodity, aligned
`with a static display of prices corresponding thereto, wherein the static
`display of prices does not move in response to a change in the inside market;
`a third program code for displaying an order entry region comprising a plurality of
`areas for receiving commands from the user input device to send trade
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`Page 3 of 11
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`orders, aligned with the static display of prices, each area corresponding to a
`price of the static display of prices; and
`a fourth program code for receiving a command as a result of a selection of a
`particular area in the order entry region by a single action of the user input
`device with a pointer of the user input device positioned over the particular
`area, to set a plurality of additional parameters for the trade order and send
`the trade order to the electronic exchange. (Dkt. 752 at ¶ 12).
`
`
`Claim 14 of the ‘132 patent states:
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`14. A client system for placing a trade order for a commodity on an electronic
`exchange having an inside market with a highest bid price and a lowest ask price, the
`system comprising:
`a parameter setting component for setting a preset parameter for the trade order;
`a display device for displaying market depth of a commodity, through a dynamic
`display of a plurality of bids and a plurality of asks in the market for the
`commodity, including the bid and ask quantities of the commodity, aligned
`with a static display of prices corresponding thereto, wherein the static
`display of prices does not move when the inside market changes, and for
`displaying an order entry region aligned with the static display of prices,
`comprising a plurality of areas for receiving commands to send trade orders,
`each area corresponding to a price of the static display of prices;
`a user input device for positioning a pointer thereof over an area in the order entry
`region; and
`a trade order sending component for receiving a command as a result of a selection
`of the area in the order entry region by a single action of the user input
`device with a pointer of the user input device positioned over the area, to set
`a plurality of additional parameters for the trade order and send the trade
`order to the electronic exchange. (Dkt. 752 at ¶ 13).
`
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`The ‘304 patent claim term “common static price axis” does not appear in the specification nor does
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`it appear in the claims of the ‘132 patent. TT asserts that the term is taught by the provisional patent
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`application and the specification of the patents-in-suit. (Dkt. 752 at ¶ 14). The claim term “static
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`display of prices” appears in the claims of the ‘132 patent and in the Summary of the Invention
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`section of the patents-in-suit. (Dkt. 752 at ¶ 15). The Summary of the Invention reads:
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`“The inventors have developed the present invention which overcomes the
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`drawbacks of the existing trading systems and dramatically reduces the time it takes
`for a trader to place a trade when electronically trading on an exchange. This, in turn,
`increases the likelihood that the trader will have orders filled at desirable prices and
`quantities.
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`Page 4 of 11
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`The ‘Mercury’ display and trading method of the present invention ensure
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`fast and accurate execution of trades by displaying market depth on a vertical or
`horizontal plane, which fluctuates logically up or down, left or right across the plane
`as the market prices fluctuates [sic]. This allows the trader to trade quickly and
`efficiently.
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`Specifically, the present invention is directed to a graphical user interface for
`displaying the market depth of a commodity traded in a market, including a dynamic
`display for a plurality of bids and for a plurality of asks in the market for the
`commodity and a static display of prices corresponding thereto. Also described
`herein is a method and system for placing trade orders using such displays.
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`These embodiments, and others described in greater detail herein, provide
`the trader with improved efficiency and versatility in placing, and thus executing,
`trade orders for commodities in an electronic exchange. Other features and
`advantages of the present invention will become apparent to those skilled in the art
`from the following detailed description. I should be understood, however, that the
`detailed description and specific examples, while indicating preferred embodiments
`of the present invention, are given by way of illustration and not limitation. Many
`changes and modifications within the scope of the present invention may be made
`without departing from the spirit thereof, and the invention includes all such
`modifications.” (Dkt. 720-1, Ex. A, the ‘304 patent, at 11; Dkt. 720-2, Ex. B, the
`‘132 patent, at 10-11).
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`The patents-in-suit state in part in the opening paragraph of the Detailed Description of the
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`Preferred Embodiments:
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`As described with reference to the accompanying figures, the present
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`invention provides a display and trading method to ensure fast and accurate
`execution of trades by displaying market depth on a vertical or horizontal plane,
`which fluctuates logically up or down, left or right across the plane as the market
`prices fluctuates [sic]. This allows the trader to place trade orders quickly and
`efficiently. A commodity’s market depth is the current bid and ask prices and
`quantities in the market. The display and trading method of the invention increase
`the likelihood that the trader will be able to execute orders at desirable prices and
`quantities. (Dkt. 720-1, Ex. A, the ‘304 patent, at 11; Dkt. 720-2, Ex. B, the ‘132
`patent, at 11).
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`The patents-in-suit state in part:
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`As described herein, the display and trading method of the present invention
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`provide the user with certain advantages over systems in which a display of market
`depth, as shown in FIG. 2, is used. The Mercury display and trading method of the
`present invention ensure fast and accurate execution of trades by displaying market
`depth on a vertical or horizontal plane, which fluctuates logically up or down, left or
`right across the plane as the market prices fluctuates [sic]. This allows the trader to
`trade quickly and efficiently. An example of such a Mercury display is illustrated in
`the screen display of FIG. 3….
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`Page 5 of 11
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`The Mercury display overcomes this problem in an innovative and logical
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`manner.1 Mercury also provides an order entry system, market grid, fill window and
`summary of market orders in one simple window. Such a condensed display
`materially simplifies the trading system by entering and tracking trades in an
`extremely efficient manner. Mercury displays market depth in a logical, vertical
`fashion or horizontally or at some other convenient angle or configuration. A vertical
`field is shown in the figures and described for convenience, but the field could be
`horizontal or at an angle. In turn, Mercury further increases the speed of trading and
`the likelihood of entering orders at desired prices with desired quantities. In the
`preferred embodiment of the invention, the Mercury display is a static vertical
`column of prices with the bid and ask quantities displayed in vertical columns to the
`side of the price column and aligned with the corresponding bid and ask prices. An
`example of this display is shown in FIG. 3.
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`Bid quantities are in the column 1003 labeled BidQ and ask quantities are in
`column 1004 labeled AskQ. The representative ticks from prices for the given
`commodity are shown in column 1005. The column, does not list the whole prices
`(e.g. 95.89), but rather, just the last two digits (e.g. 89). In the example shown, the
`inside market, cells 1020, is 18 (best bid quantity) at 89 (best bid price) and 20 (best
`ask quantity) at 90 (best ask price). In the preferred embodiment of the invention,
`these three columns are shown in different colors so that the trader can quickly
`distinguish between them.
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`The values in the price column are static; that is, they do not normally change
`positions unless a re-centering command is received (discussed in detail later). The
`values in the Bid and Ask columns however, are dynamic; that is, they move up and
`down (in the vertical example) to reflect the market depth for the given commodity.”
`(Dkt. 720-1, Ex. A, the ‘304 patent, at 13; Dkt. 720-2, Ex. B, the ‘132 patent, at 12-
`13).
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`The patents-in-suit further state in part:
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`The inside market and market depth ascend and descend as prices in the
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`market increase and decrease. For example, FIG. 4 shows a screen displaying the
`same market as that of FIG. 3 but at a later interval where the inside market, cells
`1101, has risen three ticks. Here, the inside market for the commodity is 43 (best bid
`quantity) at 92 (best bid price) and 63 (best ask quantity) at 93 (best ask price). In
`comparing FIGS. 3 and 4, it can be seen that the price column remained static, but
`the corresponding bids and asks rose up the price column. Market Depth similarly
`ascends, and descends price column, leaving a vertical history of the market.
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`As the market ascends or descends the price column, the inside market,
`might go above or below the price column displayed on a trader’s screen. Usually a
`trader will want to be able to see the inside market to assess future trades. The
`system of the present invention addresses this problem with a one click centering
`feature. With a single click at any point within the gray area, 1021, below the ‘Net
`Real’ button, the system will re-center the inside market on the trader’s screen. Also,
`when using a three-button mouse, a click of the middle mouse button, irrespective of
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`1 The “problem” is described in the preceding paragraph, which is omitted as not relevant to the issue at bar.
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`Page 6 of 11
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`the location of the mouse pointer, will re-center the inside market on the trader’s
`screen.
`The same information and features can be displayed and enabled in a
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`horizontal fashion. Just as- the market ascends and descends the vertical Mercury
`display shown in FIGS. 3 and 4, the market will move left and right in the horizontal
`Mercury display. The same data and the same information gleaned from the
`dynamical display of the data is provided. It is envisioned that other orientations can
`be used to dynamically display the data and such orientations are intended to come
`within the scope of the present invention.” (Dkt. 720-1, Ex. A, the ‘304 patent, at 14;
`Dkt. 720-2, Ex. B, the ‘132 patent, at 13).
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`CQG accurately reproduced Figures 7A, 8A, 8B, 8 C of Exhibit B (‘304 Claim Charts) to TT’s
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`Amended Final Infringement Contentions. TT admits that it identified what it believes to be the
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`common static price axis in Figures 7A, 8A, and 8B of the ‘304 claim charts to TT’s Amended Final
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`Infringement Contentions. TT identifies three “zones” in the price column that include a middle
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`zone that constitutes a “common static price axis” and two other non-static zones. TT admits that
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`Figure 8C of Exhibit B (‘304 Claim Charts) of TT’s Amended Final Infringement Contentions
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`identifies the “common static price axis” and that in this figure all price levels in the column are
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`static.
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`
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`CQG accurately reproduced Figures 1A, 2A, and 2B of Exhibit A (‘132 Claim Charts) to
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`TT’s Amended Final Infringement Contentions. TT admits that Figures 1A, 2A, and 2B of Exhibit
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`A (‘132 Claim Charts) to TT’s Amended Infringement Contentions identifies the “static display of
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`prices.” TT admits that the price column in Figures 1A, 2A, and 2B of Exhibit A has a middle zone
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`that constitutes a “static display of prices” (in which all price levels are static) and two other non-
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`static zones. TT admits that Figure 2C of Exhibit A (‘132 Claim Charts) to TT’s Amended
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`Infringement Contentions identifies the “static display of prices.” In this figure, all price levels in
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`the column are static.
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`
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`A portion of TT’s Amended Response to Interrogatory No. 25 states:
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`“With respect to CQG’s request that TT identify the written description support for
`various terms, TT objects to this request as calling for a legal contention. However,
`TT notes that the specifications of the patents-in-suit only need to provide written
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`Page 7 of 11
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`•
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`•
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`description support for the ‘static display of prices’ and ‘common static price axis’
`terms found in the claims. See TT’s Response to CQG’s Final Invalidity Contentions
`at p. 76-77. These terms, which were construed in the eSpeed case, find ample support
`in the specifications of both patents. Examples of such support are identified below:
`• Provisional patent No. 60/186,322 figures at p. 24, 28, 29, 31, 32
`•
`‘Mercury displays a static vertical column of prices…’ Provisional patent No.
`60/186,322 at p. 23-24.
`‘Prc Column: This column represents prices for the chosen commodity.’
`Provisional patent No. 60/186,322 at p. 28.
`‘The price column remained static, but the corresponding bids and asks rose up
`the price column.’ Provisional patent No. 60/186,322 at p. 30.
`• FIGS/ 3-5 of the ‘132 and ‘304 patents.
`•
`‘In the preferred embodiment of the invention, the Mercury display is a static
`vertical column of prices …’ ‘132 patent at 7:29-31; ‘304 patent at 7:48-50.
`‘The values in the price column are static …’ ‘132 patent at 7:46; ‘304 patent at
`7:65.
`‘In comparing FIGS. 3 and 4, it can be seen that the price column remained
`static, but the corresponding bids and asks rose up the price column.’ ‘132 patent
`at 8:44-47; ‘304 patent at 9:9-12.
`‘As the market ascends or descends the price column, the inside market might go
`above or below the price column displayed on a trader’s screen.’ Provisional
`patent No. 60/186,322 at p. 35; ‘132 patent at 8:49-51; ‘304 patent at 9:14-16.
`TT also notes that, under controlling law, there is no requirement that the
`written description support unclaimed features or functionality, such as
`displaying price levels in addition to a range of price levels that comprise a static
`price axis.” (Dkt. 720-24, Ex. G at 8-9).
`
`•
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`•
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`•
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`In its Rule 56.1 Statement of Facts, CQG presents as facts portions of its expert Dr. Mellor’s March
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`16, 2014, Declaration. TT admits that Dr. Mellor made the statements presented. The parties dispute
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`the implication of the testimony of CQG’ s proffered expert, Dr. Mellor, and, TT’s proffered expert,
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`Dr. Pirrong, with respect to the written description support for the claims as construed.
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`Legal Standard
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`
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`Federal Rule of Civil Procedure 56 states that summary judgment is appropriate when “there
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`is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Cartrett, 477 U.S. 317, 322 (1986). When considering a
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`summary judgment motion, the Court construes the facts and all reasonable inferences in the light
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`Page 8 of 11
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`most favorable to the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir.
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`2005).
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`Discussion
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`
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`CQG argues that the patents-in-suit are invalid for lack of written description under 35
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`U.S.C. § 112, ¶ 1, because Trading Technologies International, Inc. (“TT”) is asserting patent rights
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`beyond the scope of what the patent specification discloses. The first paragraph of section 112
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`requires that:
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`the specification shall contain a written description of the invention, and of the manner and
`process of making and using it, in such full, clear, concise, and exact terms as to
`enable any person skilled in the art to which it pertains, or with which it is most
`nearly connected, to make and use the same, and shall set forth the best mode
`contemplated by the inventor of carrying out his invention. 35 U.S.C. § 112, ¶ 1.
`
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`Compliance with the “written description” requirement of § 112 is a question of fact. Ariad Pharm.,
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`Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc); Vas-Cath Inc. v. Mahurkar, 935
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`F.2d 1555, 1563 (Fed. Cir. 1991). An issued patent is presumptively valid. 35 U.S.C. § 282. The
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`burden of establishing invalidity of a patent or any claim thereof rests on the party asserting the
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`invalidity, and must proved by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. Partnership,
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`131 S.Ct. 2238, 2242 (2011). Thus, CQG must show by clear and convincing evidence that the
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`patents-in-suit here lack a written description. See Hynix Semiconductor Inc. v. Rambus, Inc., 645 F.3d
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`1336, 1351 (Fed. Cir. 2011).
`
`
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`
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`The written description requirement is satisfied when the disclosure reasonably conveys to a
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`person of ordinary skill in the art that the inventor had possession of the claimed subject matter as
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`of the filing date. Ariad Pharm. Inc., 598 F. 3d at 1351. “[T]he patentee need only describe the
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`invention as claimed, and need not describe an unclaimed method of making the claimed product.”
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`Amgen Inc. v. Hoechst Marion Roussel, 314 F.3d 1313, 1333 (Fed. Cir. 2003). “It is sufficient for
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`purposes of the written description requirement that a person of ordinary skill in the art would find
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`Page 9 of 11
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`it ‘reasonably clear what the invention is and that the patent specification conveys that meaning.’”
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`Bone Care Int’l, LLC v. Pentech Pharmaceuticals, Inc., 741 F.Supp.2d 865, 875 (N.D.Ill. 2010) (quoting All
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`Dental Prodx, LLC v. Advantage Dental Products, Inc., 309 F.3d 774, 779 (Fed. Cir. 2002).
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`
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`CQG argues that there is no support in the written description for a static limitation that
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`covers a price column where some, but not all, prices are static. According to CQG, the written
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`description only describes a price column where all prices are static. As this Court has found, the
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`“static” limitation is to be construed consistent with Judge Moran’s Markman ruling; “a line
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`comprising price levels that do not change positions unless a manual re-centering command is
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`received and where the line of prices corresponds to at least one bid value and one ask value,” and
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`“a display of prices comprising price levels that do not change positions unless a manual re-centering
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`command is received”. (Dkt. 105 at 6.) This Court has expressly adopted the construction of the
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`static limitation as construed by Judge Moran in the eSpeed litigation and affirmed by the Federal
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`Circuit in Trading Techs. Int'l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1355 (Fed. Cir. 2010).
`
`
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`The patents-in-suit do not expressly state that the entire price column must be static nor do
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`they exclude a price column that is static with additional features. CQG concedes that “a disclosure
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`need not be in haec verba to satisfy the written description requirement of § 112.” Bone Care Int’l, LLC,
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`741 F. Supp. 2d at 876. Each party has proffered an expert opinion as to whether a person having
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`ordinary skill in the art would find that the specification conveys an invention that describes only a
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`price column where all prices are static or a price column where a portion is static. In other words,
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`the issue is whether the written description only supports an invention where the entire price
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`column is static. Resolution of this question as presented would require the Court to weigh the
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`expert testimony, particularly that of CQG’s expert Dr. Mellor. Notably, Dr. Mellor’s report and
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`declaration have been stricken by this Court. Accordingly, CQG fails to meet its burden to show by
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`Page 10 of 11
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`clear and convincing evidence that the patents-in-suit here lack a written description. See Hynix
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`Semiconductor Inc., 645 F.3d at 1351.
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`Conclusion
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`
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`Based on the foregoing, this Court denies CQG’s Motion for Summary Judgment for lack of
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`written description [709].
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`IT IS SO ORDERED.
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`Date: January 20, 2015
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`Entered: __________________________________
` Sharon Johnson Coleman
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` U.S. DISTRICT JUDGE
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`Page 11 of 11