Case 1:05-cv-04811 Document 27 Filed 11/14/2005 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 05C 4811
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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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`ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS OF
`CQG, INC. AND CQGT, LLC
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`Defendants CQG, Inc. (“CQG”) and CQGT, LLC (“CQGT”) (“collectively CQG”)
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`hereby answers Plaintiff’s Complaint for Patent Infringement as follows:
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`PARTIES
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`Plaintiff Trading Technologies is a Delaware Corporation with a principal
`1.
`place of business at 222 South Riverside Plaza, Suite 1100, Chicago, Illinois 60606.
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`CQG is without knowledge or information sufficient to form a belief as to the truth of the
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`allegations made in Paragraph 1 of the Complaint, and on that basis denies those allegations.
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`Defendant CQG is a Colorado Corporation with its principal place of
`2.
`business at 1050 17th Street, Suite 2000, Denver, CO 80265.
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`CQG admits the allegations in Paragraph 2 of the Complaint.
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`3.
`IL 60606.
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`Defendant CQG has a regional office at 311 S. Wacker, Suite 3810, Chicago,
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`CQG admits the allegations in Paragraph 3 of the Complaint.
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`Defendant CQGT is a Colorado Limited Liability Company with its
`4.
`principal place of business at 1050 17th Street, Suite 2000, Denver, CO 80265.
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`Page 1 of 9
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`TRADING TECH EXHIBIT 2008
`CQG & CQGT v. Trading Technologies
`CBM2015-00058
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`Case 1:05-cv-04811 Document 27 Filed 11/14/2005 Page 2 of 9
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`CQG admits the allegations in Paragraph 4 of the Complaint.
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`5.
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`Defendant CQGT was formed by CQG on August 12, 2005.
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`CQG admits the allegations in Paragraph 5 of the Complaint.
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`JURISDICTION AND VENUE
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`This is an action for patent infringement arising under the acts of Congress
`6.
`relating to patents, namely the Patent Laws of the United States, 35 U.S.C. §§ 1 et seq. This
`Court thereby has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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`CQG admits the allegations of Paragraph 6 of the Complaint.
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`Defendant CQG regularly conducts business in this district. Defendant CQG
`7.
`has an office located in this district. Defendant CQG provides trading software that is for
`use with the exchanges in this district, including the Chicago Board of Trade (“CBOT”)
`and the Chicago Mercantile Exchange (“CME”). This Court has jurisdiction generally
`over Defendant CQG.
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`CQG admits that it has an office in this district and that it provides trading software that
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`facilitates making trades on the CBOT and CME exchanges. Except as expressly admitted, CQG
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`denies the allegations in Paragraph 7 of the Complaint.
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`8.
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`Defendant CQGT is a wholly owned subsidiary of CQG.
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`CQG admits the allegations in Paragraph 8 of the Complaint.
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`Defendants have committed and continue to commit acts of patent
`9.
`infringement in this district. Therefore, this Court has specific jurisdiction over the
`Defendants.
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`CQG denies the allegations in Paragraph 9 of the Complaint.
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`Defendants CQG resides in this district, because Defendant is subject to
`10.
`personal jurisdiction in this district. Therefore, this District is a proper venue pursuant to
`28 U.S.C. §§ 1391(b) and 1400(b).
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`CQG admits that it is subject to personal jurisdiction in this district. Except as expressly
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`admitted, CQG denies the allegations in Paragraph 10 of the Complaint.
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`Civil Action No. 05C 4811 – ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS CQG AND CQGT
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`Case 1:05-cv-04811 Document 27 Filed 11/14/2005 Page 3 of 9
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`COUNT I:
`Infringement of U.S. Patent No. 6,766,304
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`Plaintiff Trading Technologies is the owner of U.S. Patent No. 6,766,304 (“the
`11.
`‘304 patent”), titled “Click Based Trading with Intuitive Grid Display of Market Depth,”
`which issued on July 20, 2004. A true and correct copy of the ‘304 patent is attached as
`Exhibit A.
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`U.S. Patent No. 6,766,304 (“the ‘304 Patent), identified in Exhibit A in the Complaint, is
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`a document that speaks for itself. Except as expressly admitted, CQG is without knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 11
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`of the Complaint, and on that basis denies those allegations.
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`Plaintiff Trading Technologies is in compliance with any applicable marking
`12.
`and notice provisions of 35 U.S.C. § 287.
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`CQG is without knowledge or information sufficient to form a belief as to the truth of the
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`allegations in Paragraph 12 of the Complaint, and on that basis denies those allegations.
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`Defendants have and continue to infringe the ‘304 patent by making, using,
`13.
`selling and/or offering for sale products and methods covered by claims of the ‘304 patent
`without Plaintiff Trading Technologies’ authorization in violation of 35 U.S.C. § 271(a).
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`CQG denies the allegations in Paragraph 13 of the Complaint.
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`In addition, Defendants’ actions have and continue to constitute active
`14.
`inducement of and/or contributory infringement of the ‘304 patent in violation of 35 U.S.C.
`§ 271(b) and (c).
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`CQG denies the allegations in Paragraph 14 of the Complaint.
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`15.
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`Defendants’ infringement of the ‘304 patent is willful and deliberate.
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`CQG denies the allegations in Paragraph 15 of the Complaint.
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`Defendants’ infringement of the ‘304 patent has caused irreparable harm to
`16.
`Plaintiff Trading Technologies and will continue to do so unless enjoined.
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`CQG denies the allegations in Paragraph 16 of the Complaint.
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`Civil Action No. 05C 4811 – ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS CQG AND CQGT
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`COUNT II:
`Infringement of U.S. Patent No. 6,722,132
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`17.
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`Plaintiff Trading Technologies incorporates paragraphs 1-16 as if set forth in
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`full.
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`CQG incorporates by reference its responses to Paragraphs 1-16, as set forth above, as
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`though fully set forth herein.
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`Plaintiff Trading Technologies is the owner of U.S. Patent No. 6,773, 243
`18.
`(“the ‘132 patent”), titled “Click Based Trading with Intuitive Grid Display of Market
`Depth,” which issued on August 3, 2004. A true and correct copy of the ‘132 patent is
`attached as Exhibit B.
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`U.S. Patent No. 6,772,132 (“the ‘132 Patent), identified in Exhibit B in the Complaint, is
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`a document that speaks for itself. Except as expressly admitted, CQG is without knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 18
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`of the Complaint, and on that basis denies those allegations.
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`Plaintiff Trading Technologies is in compliance with any applicable marking
`19.
`and notice provisions of 35 U.S.C. § 287.
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`CQG is without knowledge or information sufficient to form a belief as to the truth of the
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`allegations in Paragraph 19 of the Complaint, and on that basis denies those allegations.
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`Defendants have and continues to infringe the ‘132 patent by making, using,
`20.
`selling and/or offering for sale products and methods covered by claims of the ‘132 patent
`without Plaintiff Trading Technologies’ authorization in violation of 35 U.S.C. § 271(a).
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`CQG denies the allegations in Paragraph 20 of the Complaint.
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`In addition, Defendants’ actions have and continue to constitute active
`21.
`inducement of and/or contributory infringement of the ‘132 patent in violation of 35 U.S.C.
`§271(b) and (c).
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`CQG denies the allegations in Paragraph 21 of the Complaint.
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`22.
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`Defendants’ infringement of the ‘132 patent is willful and deliberate.
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`CQG denies the allegations in Paragraph 22 of the Complaint.
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`Civil Action No. 05C 4811 – ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS CQG AND CQGT
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`Defendants’ infringement of the ‘132 patent has caused irreparable harm to
`23.
`Plaintiff Trading Technologies and will continue to do so unless enjoined.
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`CQG denies the allegations in Paragraph 23 of the Complaint.
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`AFFIRMATIVE DEFENSES
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`1.
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`2.
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`unclean hands.
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`Patent.
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`3.
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`4.
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`Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
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`Plaintiff’s claims are barred by the doctrines of estoppel, acquiescence and/or
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`CQG has not been and is not now infringing either the ‘304 Patent or the ‘132
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`The claims of the ‘304 Patent and ‘132 Patent are invalid or unenforceable for
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`failure to comply with one or more provisions of Title 35 of the United States Code, including
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`without limitation, Sections 101, 102, 103, and/or 112.
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`COUNTERCLAIM
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`For their counterclaim in this action, CQG, Inc. (“CQG”) and CQGT, LLC (“CQGT”)
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`(“collectively CQG”) allege as follows:
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`1.
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`CQG incorporates by reference each of the prior allegations of this Answer and
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`Counterclaim.
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`JURISDICTION AND VENUE
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`2.
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`Counterclaimant CQGT, LLC is a Colorado limited liability company, with its
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`principal place of business in Denver, Colorado. Counterclaimant CQG, Inc. is a Colorado
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`corporation, with its principal place of business in Denver, Colorado.
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`3.
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`Counterdefendant Trading Technologies International, Inc. (“TT”) alleges that it
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`is a Delaware corporation, with its principal place of business in Chicago, Illinois.
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`4.
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`The Court has subject matter jurisdiction over this counterclaim pursuant to the
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`Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202. The Court also has
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`jurisdiction over this counterclaim pursuant to 28 U.S.C. §§ 1331 and 1338, because this case
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`presents a well-pleaded federal question under the Patent Act of 1952 (as amended), 35 U.S.C.
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`§§ 1, et seq.
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`5.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (c).
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`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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`6.
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`7.
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`CQG repeats and realleges Paragraphs 1-5 above, as though fully set forth herein.
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`This is a counterclaim for a Declaratory Judgment that CQG has not infringed any
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`claim of U.S. Patent No. 6,766,304 or U.S. Patent No. 6,722,132, and that each and every one of
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`the claims of said Patents are invalid.
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`8.
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`This counterclaim arises from an actual and justiciable controversy between CQG
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`and TT as to the alleged infringement and validity of the ‘304 Patent and ‘132 Patent. TT has
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`brought suit against CQG for infringement of the ‘304 Patent and the ‘132 Patent.
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`9.
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`CQG has not infringed or committed contributory infringement of any claims of
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`the ’304 Patent or ’132 Patent by making, using, selling, offering for sale, distributing and/or
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`importing any product, or by practicing any process.
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`10.
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`Upon information and belief, the ’304 Patent and ’132 Patent, and each and every
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`respective claim thereof, are invalid or unenforceable for failure to comply with one or more
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`provisions of Title 35 of the United States Code, including without limitation, Sections 101, 102,
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`103, and/or 112.
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`11.
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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 case
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`warranting an award of CQG’s reasonable attorney’s fees and costs under 35 U.S.C. § 285.
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`PRAYER FOR RELIEF
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`WHEREFORE, Defendants and Counterclaimants CQG and CQGT respectfully request
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`this Court enter an Order:
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`A.
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`Dismissing Plaintiff’s Complaint with prejudice, and that Plaintiff take nothing by
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`way of its Complaint.
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`B. Declaring that United States Patent No. 6,766,304 is invalid, unenforceable, and
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`not infringed by CQG or CQGT.
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`C. Declaring that United States Patent No. 6,722,132 is invalid, unenforceable, and
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`not infringed by CQG or CQGT.
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`D. Awarding CQG and CQGT their costs in this action.
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`E.
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`Finding this action to be exceptional under 35 U.S.C. § 285, and awarding CQG
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`and CQGT their reasonable attorneys’ fees in this action.
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`F.
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`Awarding to CQG and CQGT such further and additional relief, as this Court may
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`deem just and proper.
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`DEMAND FOR JURY TRIAL
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`Counterclaimants and Defendants CQG and CQGT hereby demand a trail by jury on all
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`issues.
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`Dated: November 14, 2005.
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`Case 1:05-cv-04811 Document 27 Filed 11/14/2005 Page 8 of 9
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`By:
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`s/ Mark W. Fischer
`FAEGRE & BENSON LLP
`Mark W. Fischer, Pro Hac Vice
`Jared B. Briant, Pro Hac Vice
`1900 Fifteenth Street
`Boulder, Colorado 80302
`Telephone: (303) 447-7700
`Facsimile: (303) 447-7800
`
`David S. Argentar
`CHUHAK & TECSON, P.C.
`30 S. Wacker Drive, Suite 2600
`Chicago, Illinois 60606
`Telephone: (312) 444-9300
`Facsimile: (312) 444-9027
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`ATTORNEYS FOR DEFENDANTS
`CQG, Inc. and CQG, LLC
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`Civil Action No. 05C 4811 – ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS CQG AND CQGT
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`Case 1:05-cv-04811 Document 27 Filed 11/14/2005 Page 9 of 9
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`CERTIFICATE OF SERVICE (CM/ECF)
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`I hereby certify that on November 14, 2005, I electronically filed the foregoing
`ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS OF
`CQG, INC. AND CQGT, LLC 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:
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`Stephen Richard Carden
`carden@mbhb.com
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`Jennifer M. Kurcz
`kurcz@mbhb.com
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`Leif R. Sigmond, Jr.
`sigmond@mbhb.com
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`Dennis David Crouch
`crouch@mbhb.com
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`George I. Lee
`lee@mbhb.com
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`David Seth Argentar
`dargentar@chuhak.com
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`I also hereby certify that on November 14, 2005, a true and correct copy of the foregoing
`ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS OF CQG, INC. AND
`CQGT, LLC was sent via facsimile and placed in the U. S. Mail, properly addressed, postage
`prepaid to the following non CM/ECF participant:
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`Paul H. Berghoff
`McDonnell, Boehnen, Hulbert & Berghoff, Ltd.
`300 South Wacker Drive
`29th Floor
`Chicago, IL 60606
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`Matthew J. Sampson
`McDonnell, Boehnen, Hulbert & Berghoff, Ltd.
`300 South Wacker Drive
`29th Floor
`Chicago, IL 60606
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`By:
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`s/ Mark W. Fischer
`FAEGRE & BENSON LLP
`Mark W. Fischer, Pro Hac Vice
`Jared B. Briant, Pro Hac Vice
`1900 Fifteenth Street
`Boulder, Colorado 80302
`Telephone: (303) 447-7700
`Facsimile: (303) 447-7800
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