Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 1 of 18 PageID #:18052
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`Trading Technologies International, Inc.,
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`Plaintiff,
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 05-cv-4811
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Sidney Schenkier
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`)))))))))
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`CQG, Inc. and CQGT, LLC,
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`Defendants.
`CQG’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY
`JUDGMENT THAT THE ’304 AND ’132 PATENTS ARE INVALID
`UNDER 35 U.S.C. § 112, ¶ 1 FOR LACK OF WRITTEN DESCRIPTION
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`Page 1 of 18
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`TRADING TECH EXHIBIT 2011
`CQG & CQGT v. Trading Technologies
`CBM2015-00058
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`Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 2 of 18 PageID #:18053
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`The patents-in-suit1 are invalid for lack of written description under 35 U.S.C. § 112, ¶ 1,
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`because TT has asserted patent rights beyond the scope of what the patent specification
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`discloses. In other words, the specification (i.e., the written description) fails to support TT(cid:146)s
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`broad interpretation of its patent claims. According to TT, the Static Limitation covers both (1)
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`price columns where all prices are static and (2) price columns where only some prices are static.
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`Yet the specification only discloses a price column where all prices are static. Because the
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`inventors(cid:146) were not in possession of an invention where only some prices in a price column are
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`static, as TT asserts, each of the asserted claims of the patents-in-suit lack written description
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`support and are invalid under 35 U.S.C. § 112, ¶ 1, as a matter of law.
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`I.
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`Statement of Facts
`A.
`Undisputed Facts Regarding the Claims
` TT(cid:146)s patents are directed to displaying market information related to and facilitating
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`trading of a commodity being traded in an electronic exchange having an inside market with a
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`highest bid price and a lowest ask price on a graphical user interface (or GUI). (SMF at ¶¶ 7-13.)
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`The GUI described in each of the claims requires a Static Limitation. (Id.) The Static Limitation
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`in the (cid:146)304 patent is the (cid:147)common static price axis,(cid:148) and in the (cid:146)132 patent is the (cid:147)static display
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`of prices.(cid:148) (Id.)
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`In Trading Techs. Int’l, Inc. v. eSpeed, Inc. ((cid:147)eSpeed(cid:148)), the Federal Circuit construed the
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`Static Limitation. eSpeed, 595 F.3d 1340, 1352-1355. The eSpeed construction for the term
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`(cid:147)common static price axis(cid:148) is (cid:147)a line comprising price levels that do not change positions unless
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`a manual re-centering command is received.(cid:148) Id. at 1352. The eSpeed construction for the term
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`(cid:147)static display of prices(cid:148) is substantially identical and requires (cid:147)a display of prices comprising
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`1 The patents-in-suit include U.S. Patent Nos. 6,766,304 and 6,772,132.
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`price levels that do not change positions unless a manual re-centering command is received.(cid:148)2
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`Id. Although the claims refer to a price axis or display of prices, the patent specifications
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`(discussed in the next section) only refer to a price column.3 For purposes of consistency, this
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`motion refers to the Static Limitation as a static price column.4
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`Despite its construction, eSpeed did not address whether all prices of the price column
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`must be (cid:147)static(cid:148) or whether only some prices displayed in the price column must be (cid:147)static.(cid:148) Id.
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`at 1352-55. Here, TT is interpreting the Static Limitation as covering both a price column where
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`all prices are static and a price column where only some prices are static. (SMF at ¶¶ 26-35.)
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`For example, TT(cid:146)s Final Infringement Contentions allege that the middle subset of prices in
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`CQG(cid:146)s price column satisfies the Static Limitation. (Id.) TT refers to this subset of prices as
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`(cid:147)The price axis in the Non-Market Window Zone(cid:148) because it excludes the so-called (cid:147)Market
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`Window [Zone] at Top of Screen(cid:148) and the (cid:147)Market Window [Zone] at Bottom of Screen(cid:148) as
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`depicted in TT(cid:146)s Final Infringement Contentions and below.5 (Id.)
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`2 eSpeed’s construction of the Static Limitation also included several clarifications. In particular, eSpeed
`held that the (cid:147)the static condition requires permanency and thus, the price axis never changes positions
`unless by manual re-centering or re-positioning.(cid:148) Id. at 1354. eSpeed also held that the Static Limitation
`requires the presence of a manual re-centering command. Id. Regarding the (cid:147)common static price axis(cid:148),
`eSpeed clarified that (cid:147)the line of prices corresponds to at least one bid value and one ask value.(cid:148) Id.
`Although these clarifications are part of the construction of the Static Limitation, they are immaterial to
`the present motion.
`3 Other than in the (cid:147)Summary of the Invention(cid:148) section, where the inventors referred to the invention as a
`static display of prices, the inventors adopted and used the term (cid:147)price column(cid:148) to describe the Static
`Limitation. (SMF at ¶¶ 14-20.) Although the specification notes that the price column may take any
`orientation (e.g., vertical, horizontal, or diagonal), the preferred embodiment is a vertical price column.
`(Id. at ¶¶ 17, 19.)
`4 The accused CQG products all have a vertical price column. (SMF at ¶¶ 21-25.) Accordingly, the only
`configuration of the price column relevant to non-infringement and invalidity based on written description
`is the vertical configuration.
`5 CQG describes its products differently than TT. CQG refers to the so-called (cid:147)Non-Market Window
`Zone(cid:148) subset of prices in its price column as the (cid:147)Market Pane Free Zone.(cid:148) Also, CQG refers to the so-
`called (cid:147)Top and Bottom Market Window Zones(cid:148) as the (cid:147)Top and Bottom Market Pane Zones.(cid:148) To avoid
`any confusion, CQG will adopt TT(cid:146)s terminology solely for purposes of this motion.
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`(SMF at ¶ 33.) In other words, TT alleges that CQG(cid:146)s products satisfy the Static Limitation
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`because some of the prices in the price column are allegedly static.
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`Undisputed Facts Regarding the Specification
`B.
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`The patents-in-suit share an identical written description. (SMF at ¶ 6.) The inventors
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`referred to their alleged invention as either (cid:147)the invention(cid:148) or the (cid:147)Mercury display.(cid:148)6 (Id. at ¶¶
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`17, 19.) The Mercury display has (cid:147)a static vertical column of prices with the bid and ask
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`6 The inventors chose the term Mercury because the invention allegedly behaves like a thermometer.
`(SMF ¶ 38.) ((cid:147)You can see the market through these [bid and ask] indicators moving up and down [the
`static scale] like [the mercury in] a thermometer. In fact, the patent uses the word (cid:145)mercury(cid:146) to make an
`analogy to a thermometer. Obviously, the [static price column] scale here, the only scale is price, so the
`movement [of bid and ask indicators] up and down [the static price column] reflects price changes.(cid:148))
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`quantities displayed in vertical columns to the side of the price column and aligned with the
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`corresponding bid and ask prices.(cid:148) (Id. at ¶ 17.) The Mercury display is depicted below with the
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`price column (cid:147)Prc(cid:148) (element 1005) outlined in red, and the bid column (cid:147)BidQ(cid:148) (element 1003)
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`and ask column (cid:147)Ask Q(cid:148) (element 1004) collectively outlined in blue:
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`(Id. at ¶¶ 18, 36.) The values in the red price column are static; they do not move unless a
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`manual re-centering command is received. (Id. at ¶ 17.) Over time, the values in the blue bid
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`and ask columns are dynamic; they move up and down the price column to reflect the (cid:147)market
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`depth(cid:148) (i.e., the current bid and ask quantities in the market at each price for the commodity
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`being traded). (Id., at ¶¶ 17-20, 37.)
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`When TT(cid:146)s interpretation of the Static Limitation became apparent during discovery,
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`CQG served an interrogatory asking TT to identify all written description support for its
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`assertion that the Static Limitation covers price columns where only some of the displayed prices
`are static. (SMF at ¶¶ 64-65.) TT(cid:146)s response was deficient. Instead of identifying support for
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`TT(cid:146)s theory that the Static Limitation covers price columns where some but not all prices are
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`static, TT identified support for a price column where all prices are static. (Id. at ¶ 66.)
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`II.
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`Argument
`Legal Standards for Summary Judgment in Patent Cases
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`A.
`Summary judgment is proper when there is no genuine issue of material fact and the
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`movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Although inferences are
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`drawn and facts are viewed in the light most favorable to the non-movant, the mere existence of
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`some factual dispute will not prevent otherwise proper entry of summary judgment; only genuine
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`disputes over material facts will defeat summary judgment. U.S. v. Diebold, Inc., 369 U.S. 654,
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`655 (1962); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
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`A patent(cid:146)s specification must provide sufficient written description of the claimed subject
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`matter sufficient to convey to those skilled in the art that the inventor actually invented, and was
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`in possession of, the full scope of the construed claims as of the filing date of the patent. 35
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`U.S.C. § 112, ¶1; Energy Trans. Group, Inc. v. William Demant Holding A/S, 697 F. 3d 1342,
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`1350 (Fed. Cir. 2012); Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir.
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`2010) (en banc); PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306 (Fed. Cir. 2008).
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`(cid:147)What is claimed by the patent application must be the same as what is disclosed in the
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`specification . . . .(cid:148) New Railhead Mfg., LLC v. Vermeer Mfg. Co., 298 F.3d 1290, 1296 (Fed.
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`Cir. 2002) (citation omitted). In other words, (cid:147)a broadly drafted claim must be fully supported
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`by the written description and drawings.(cid:148) Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d
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`1313, 1333 (Fed. Cir. 2003); Cooper Cameron v. Kvaerner Oilfield, 291 F.3d 1317, 1323 (Fed.
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`Cir. 2002); Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1480 (Fed. Cir. 1998).
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`The written description requirement (cid:147)ensure[s] fair play in the presentation of claims
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`after the original filing date and [] guard[s] against manipulation of that process by the patent
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`applicant.(cid:148) PowerOasis, 522 F.3d at 1306. Section 112 also prevents a patentee (cid:147)from later
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`asserting that he invented that which he did not,(cid:148) Agilent Technologies, Inc. v. Affymetrix, Inc.,
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`567 F.3d 1366, 1383 (Fed. Cir. 2009), and provides a safeguard against sweeping, overbroad
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`claims that, if upheld, would (cid:147)entitle an inventor to a claim scope far greater than what a person
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`of skill in the art would understand the inventor to possess . . . .(cid:148) LizardTech, Inc. v. Earth
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`Resource Mapping, Inc., 424 F.3d 1336, 1346 (Fed. Cir. 2005); accord, PowerOasis, 522 F.3d at
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`1306. Thus, if the full scope of the construed claims go beyond what is described in the
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`specification, they are invalid under 35 U.S.C. § 112, ¶ 1. ICU Med., Inc. v. Alaris Medical
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`Systems, Inc., 558 F.3d 1368, 1378-79 (Fed. Cir. 2008); LizardTech, 424 F.3d at 1346; Tronzo v.
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`Biomet, Inc., 156 F.3d 1154, 1158-60 (Fed. Cir. 1998).
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`The adequacy of the written description requirement is properly assessed (cid:147)from the face
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`of the application.(cid:148) New Railhead, 298 F.3d at 1295; see also Centocor Ortho Biotech, Inc. v.
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`Abbott Labs., 636 F.3d 1341, 1347 (Fed. Cir. 2011); Ariad, 598 F.3d at 1351. Where the claims
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`lack written support, summary judgment is appropriate. ICU Med., 558 F.3d at 1378;
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`PowerOasis, 522 F.3d at 1306-11; New Railhead, 298 F.3d at 1294-97.
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`B.
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`The Claims of the Patents-in-Suit Are Invalid for Lack of Written
`Description, Because the Specification Fails to Describe the Full Scope of the
`Claims, as Asserted by TT
`Although CQG believes that the Static Limitation should be narrowly construed to cover
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`only price columns where all prices are static, there is no genuine dispute that TT interprets the
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`full scope of the Static Limitation much more broadly. In particular, TT asserts that the full
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`scope of the Static Limitation includes both price columns where all displayed prices are static
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`and price columns where only some prices are static. (SMF at ¶¶ 27-35.) Yet, the patents-in-suit
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`only describe a price column where all displayed prices are static. (Id. at ¶¶ 17-20, 36-37, 44-
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`61.) Accordingly, TT(cid:146)s broadly asserted claims lack written description support and are invalid
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`under 35 U.S.C. § 112, ¶ 1.
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`1.
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`This Court Need Not Consider Expert Testimony Regarding the
`Perspective of the Person Having Ordinary Skill, Because the
`Technology Is Simple to Comprehend
`The written description issue is analyzed through the lens of a hypothetical person having
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`ordinary skill in the art ((cid:147)PHOSITA(cid:148)). 35 U.S.C. § 112, ¶ 1; Amgen, 314 F.3d at 1330. Here,
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`however, TT admitted last month to Judge Ellis that the patents-in-suit do not involve technology
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`that is difficult to comprehend. (SMF ¶ 38.) (cid:147)The case . . . is not about technology at the
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`exchanges or complex technology, what I call beyond the screen or under the hood of the
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`computer . . . . [O]nce some basic trading terms are understood, the technology is relatively
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`simple to understand.(cid:148) Id. CQG agrees.7 Given the parties(cid:146) agreement on this score, this Court
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`need not consider expert testimony regarding the perspective of the PHOSITA to resolve this
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`motion. Instead, the Court is well-equipped to independently evaluate the four corners of the
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`specification and access the written description support for the Static Limitation.
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`Despite the parties(cid:146) agreement regarding the simple-to-comprehend technology, CQG(cid:146)s
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`Statement of Material Facts refers to both the specification and CQG(cid:146)s expert declaration offered
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`by Dr. Mellor regarding the perspective of the PHOSITA. Dr. Mellor(cid:146)s declaration concludes
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`7 While CQG agrees that the technology is simple to understand, CQG disagrees with TT(cid:146)s argument that
`all aspects of the invention should be viewed from the perspective of the user. CQG also disagrees with
`TT(cid:146)s suggestion that the perspective of the PHOSITA is the perspective of the trader/user of the
`invention. Judge Moran(cid:146)s rulings on this score were limited solely to claim construction and whether
`certain claim terms were to be construed from the perspective of a user or the computer. (Claim Const.
`Order, Oct. 31, 2006, Dkt. # 105.) Contrary to TT(cid:146)s suggestion, a PHOSITA must be someone capable of
`making and using the invention. 35 U.S.C. § 112, ¶ 1. Here, an ordinary trader/user would be incapable
`of making the invention. (SMF at ¶ 62.) Instead, the PHOSITA must be someone with significant
`training and experience programming user interfaces. (Id. at ¶ 63.)
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`that, from the perspective of PHOSITA, the specification does not support TT(cid:146)s asserted claim
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`scope. (SMF ¶ 44.)
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`2.
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`The Specification Only Describes a Price Column Where All—Not
`Just Some—Prices Are Static
`Although TT alleges that its claims broadly cover a price column where only some, but
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`not necessarily all, displayed prices are static, the specification only describes price columns
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`where all prices displayed in a price column are static. Nowhere does the specification describe
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`an invention where only some of the prices in the price column are static.
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`The specification refers to the Static Limitation as a price column. (SMF at ¶¶ 14-20, 36,
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`53.) The plain and ordinary meaning of (cid:147)column(cid:148) is (cid:147)a columnlike object, mass, or formation,(cid:148)
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`(cid:147)a vertical arrangement on a page of horizontal lines . . . ,(cid:148) and (cid:147)a vertical row or list.(cid:148) (SMF at
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`¶ 54.) Just like a Roman or Greek column extends the entire distance between its base (i.e., the
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`pedestal) and its top (i.e., the capital), a price column extends the entire distance from bottom to
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`top and includes all prices displayed along the vertical arrangement. Therefore, the
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`specification(cid:146)s consistent use of the term (cid:147)column(cid:148) strongly suggests that the Static Limitation
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`includes all prices displayed in the vertical formation or arrangement. (Id. at ¶ 41.)
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`Importantly, the specification comports with the dictionary definition of (cid:147)column.(cid:148) In
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`particular, the specification describes the operation of the Mercury display using two screen
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`shots of the display at two different points in time, as depicted in Figures 3 and 4 below and
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`annotated to show the price column in red and bid and ask columns in blue. (SMF ¶¶ 17-20, 56.)
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`Figure 3 displays a market for a commodity at a first point in time at which the inside
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`market8 comprises a best (i.e., highest) bid of 18 units at a price of 89 and a best (i.e., lowest) ask
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`of 20 units at a price of 90. (SMF at ¶¶ 17-18, 56.) Figure 4 displays the same market at a later
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`time where the inside market has shifted upward such that the best bid is now for 43 units at a
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`price of 92 and the best ask is for 63 units at a price of 93. (Id. at ¶¶ 19-20, 56.) The
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`specification explains that (cid:147)it can be seen that the price column remained static.(cid:148) (Id. at ¶ 19,
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`56.) Indeed, the price column in Figure 3 has the same range of prices located in the same
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`positions as the price column in Figure 4. (Compare SMF at ¶ 18 with id., at ¶ 20; Id. at ¶ 56.)
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`8 The patents-in-suit define the (cid:147)inside market(cid:148) inconsistently. On the one hand, the specification
`discloses that (cid:147)[f]or a commodity being traded, the inside market is the highest bid price and the lowest
`ask price.(cid:148) (SMF ¶ 39.) On the other hand, the specification discloses that (cid:147)the inside market for the
`commodity being traded . . . is the best (highest) bid price and quantity and the best (lowest) ask price and
`quantity.(cid:148) (SMF ¶ 40.) The difference between these definitions is immaterial for the purposes of the
`present motion.
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`While all of the prices remained the same across the entire price column, corresponding bids and
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`asks rose up the price column. (Id. at ¶¶ 19, 56.)
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`Later, the specification concedes that the Static Limitation presents a problem.
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`According to the specification, (cid:147)As the market ascends or descents the price column, the inside
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`market might go above or below the price column displayed on a trader(cid:146)s screen. Usually a
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`trader will want to be able to see the inside market to assess future trades. The system of the
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`present invention addresses this problem with a one click centering feature.(cid:148) (SMF at ¶ 19, 56)
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`(emphasis added). With a single click of the mouse in a designed area 1021 (see Figure 3 supra),
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`the system will re-center the price column by repositioning the inside market on the trader(cid:146)s
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`screen. (Id. at ¶¶ 19, 18, 56.)
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`Although the specification does not expressly define the Static Limitation to include all
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`prices displayed in the price column, the specification implicitly does the job where it discloses
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`the problem associated with a trader not seeing the inside market in a static price column. Only a
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`fully static price column where all prices are static can experience this (cid:147)problem.(cid:148) To illustrate
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`this point, a price column having three zones where only the middle zone is static and where top
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`and bottom zones dynamically move to show the inside market would never have the (cid:147)problem(cid:148)
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`requiring a manual re-centering command to see the inside market. Instead, the trader would
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`only need to look within the top or bottom zones to (cid:147)see(cid:148) the inside market. (SMF at ¶ 56.) ((cid:147)If
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`TT were in possession of an invention [such as CQG(cid:146)s product], [TT] would not have needed a
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`one-click re-centering technique.(cid:148))
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`Another limiting disclosure is the specification(cid:146)s use of curly brackets in the figures to
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`illustrate certain features of the invention. For example, in Figure 3 (depicted supra), horizontal
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`curly bracket 1005 identifies the entire price column and refers to all prices displayed in the price
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`column.9 (Id. at ¶¶ 17-18, 57.) Notably, when the specification refers to a subset of prices in the
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`price column, the specification uses a different identifier, namely vertical curly brackets. (SMF
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`at ¶¶ 18, 20, 36, 19, 57.) For example, in Figures 3 and 4 (depicted supra) the inside market,
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`which generally does not include all prices displayed in the price column, is identified by vertical
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`curly brackets 1020 and 1101. (Id.) Because the inventors were capable of distinguishing and
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`separately identifying some prices from all prices in a price column, yet chose not to provide any
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`description of a price column where only some prices are static, the inventors were not in
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`possession of a price column where only some prices are static.
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`Finally, the stated goals for the (cid:147)present invention(cid:148) conflict with TT(cid:146)s broad assertion of
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`the Static Limitation. The specification touts that the (cid:147)present invention(cid:148) overcomes the problem
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`of the prior art and guarantees price accuracy by keeping the entire price column static. (SMF at
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`¶ 41; Claim Const. Order, Oct. 31, 2006, Dkt. 105 (construing specification to guarantee
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`accuracy of price).) In particular, the specification discloses that (cid:147)The values in the price column
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`are static; that is they do not normally change positions unless a manual re-centering command is
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`received . . . .(cid:148) (SMF at ¶ 17) (emphasis added.) By contrast, employing a price column where
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`any of the displayed prices levels can move automatically(cid:151)whether these dynamically displayed
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`price levels are located at the top, bottom, or middle of the column(cid:151)creates a situation where a
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`trader may miss their intended price. Thus, movement of any displayed price levels in the price
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`column potentially results in inaccurate trades, thereby defeating the primary goal of the (cid:147)present
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`invention.(cid:148)
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`9 The inventors similarly used horizontal curly brackets to identify the entirety of the bid, ask, and last
`traded quantity columns. (SMF at ¶¶ 36, 17, 57.)
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`Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 13 of 18 PageID #:18064
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`Taken together, the specification only describes an invention where all displayed prices
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`do not move, unless the user manually inputs a re-centering command. The specification fails to
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`provide any written description support for TT(cid:146)s broad interpretation of the Static Limitation.
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`3.
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`TT’s Interrogatory Responses Highlight the Specification’s Failure of
`to Teach a Price Column Where Only Some Prices Are Static
`Despite the clarity of the specification, TT(cid:146)s failure to answer interrogatory requests
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`seeking support for TT(cid:146)s misguided interpretation of the Static Limitation (see SMF at ¶¶ 64-66)
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`underscores that the inventers were not in possession of an invention where only some of the
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`displayed prices in a price column are static. In response to CQG(cid:146)s interrogatory requests, TT
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`cited to portions of the specification discussed supra that only support a price column where all
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`prices are static. (Id. at ¶ 66.) TT(cid:146)s failure to explain the bases for its overly broad interpretation
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`of the Static Limitation cuts against TT(cid:146)s position and compels a finding that the specification
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`only supports an appropriately narrow interpretation of the Static Limitation tied to a price
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`column where all displayed prices are static.
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`4.
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`The Claim Language Suggests That the Inventors Only Possessed a
`Price Column Where All Prices Are Static
`The Static Limitation in the (cid:146)304 patent is a common static price axis. (SMF at ¶¶ 8-9.)
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`(emphasis added). The plain and ordinary meaning of the term (cid:147)axis(cid:148) is a line. (Id. at ¶¶ 45-46.)
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`An example of axes are the x- and y-axes used to plot functions in algebra. (Id. at ¶ 47.) Anyone
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`who studied entry-level algebra in high school would recognize that a line, unlike a line segment,
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`is unbounded and goes on in both directions forever. (Id.) Thus, both a high schooler and
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`PHOSITA would immediately understand that the Static Limitation includes all prices displayed
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`along the axis and not just a subset of the displayed prices. (Id.) Moreover, at least one
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`contemporaneous lay dictionary and thesaurus make clear that something that is (cid:147)common(cid:148) is
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`universal. (Id. at ¶¶ 48, 49.) And contemporaneous technical texts in the PHOSITA(cid:146)s computer
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`Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 14 of 18 PageID #:18065
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`science/electrical engineering/computer engineering field confirm that PHOSITA would readily
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`understand that something that is (cid:147)common(cid:148) (e.g., a common ground terminal in a circuit
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`diagram) means universal. (Id. at ¶ 50.)
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`Similarly, the Static Limitation in the (cid:146)132 patent is the (cid:147)static display of prices.(cid:148) (SMF
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`at ¶¶ 11-13.) (emphasis added). The term (cid:147)display(cid:148) suggests that the GUI displays prices and
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`that all such displayed prices are static. (SMF at ¶ 36.) Accordingly, even without the limited
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`disclosures in the specification, the claims of the patents-in-suit confirm that the inventors were
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`not in possession of an invention where only some prices along the price column are static, but
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`were only in possession of an invention where all prices along the price column are static. (Id.)
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`5.
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`The Prosecution Histories Reinforce the Inevitable Conclusion That
`the Inventors Were Not in Possession of a Price Column Where Only
`Some Prices Are Static
`Although the prosecution histories of the patents are not part of the specification and need
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`not be considered by this Court to find the patents invalid, they reinforce the limited teachings of
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`the specification. During the prosecution of the (cid:146)132 patent, the patent examiner rejected all
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`claims because the claim limitation (cid:147)static display(cid:148) was (cid:147)indefinite for failing to particularly
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`point out and distinctly claim the subject matter which applicant regards as the invention.(cid:148) (SMF
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`at ¶ 58.) The examiner invited the inventors to clarify (cid:147)to what extent,(cid:148) (cid:147)to what degree,(cid:148) and
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`(cid:147)on what basis(cid:148) the display changes. (Id.) The inventors responded that the invention was
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`drawn to a price column where (cid:147)the values in the price column remain (cid:145)static(cid:146); that is, they do
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`not change positions in the display (unless a re-centering command is received).(cid:148) (Id.) By
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`referencing Figures 3 and 4 of the specification (depicted supra), the inventors explained that (cid:147)it
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`can be seen that the price column remained static, but the corresponding bids and asks rose up
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`the price column when the quantities updated.(cid:148) (Id.) In other words, the invention was drawn to
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`Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 15 of 18 PageID #:18066
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`a price column where all prices in the price column were static. The examiner accepted the
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`inventors(cid:146) explanation and withdrew the rejection on that basis. (Id. at ¶ 59)
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`The examiner ultimately issued the patent on the same basis and explained that the
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`inventors(cid:146) explanation of Figures 3 and 4 directed to a price column where all prices are static
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`over time carried the day. (SMF at ¶ 60.) The examiner commented that (cid:147)unlike the prior art,
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`the (cid:145)static(cid:146) display of prices is just that static, and does not move in response to a change in the
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`inside market.(cid:148) (Id.) Noticeably absent from the prosecution histories is any explanation of a
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`price column where only some prices are static. The same examiner also examined the
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`application that issued as the (cid:146)304 patent and provided nearly an identical statement of reasons
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`for allowance, thus confirming that the invention in both patents was limited to a price column
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`where all prices are static. (Id. at ¶ 61.)
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`From all the foregoing, there is only one, inevitable conclusion: the claims of the (cid:146)304
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`and (cid:146)132 patents are invalid for lack of written description under 35 U.S.C. § 112, ¶ 1 to the
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`extent that the claims cover a price column where some but not all displayed prices are static, as
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`asserted by TT. LizardTech, Tronzo, and ICU Medical are squarely on point here. In
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`LizardTech, the claims purported to cover a method for creating a seamless discrete wavelet
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`transform ((cid:147)DWT(cid:148)) generically. LizardTech, 424 F.3d at 1343. However, the Court found that
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`the specification disclosed only one way of creating a seamless DWT, namely, by maintaining
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`updated sums of DWT coefficients. Id. at 1343-44. LizardTech held that the claims lacked
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`written description support and were invalid under Section 112. Id. at 1345-46.
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`In Tronzo, the patent was directed to an artificial hip socket that included cup implants
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`adapted for insertion into a hip bone. Tronzo, 156 F.3d at 1156. While the claims covered cups
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`that were generic in shape, the specification touted the advantage of cup implants that were
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`Case: 1:05-cv-04811 Document #: 712 Filed: 03/17/14 Page 16 of 18 PageID #:18067
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`conical. Id. at 1159. Tronzo held that there was nothing in the specification (cid:147)to suggest that
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`shapes other than conical are necessarily a part of the disclosure,(cid:148) and that the claims covering
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`generically-shaped cups were therefore invalid for lack of written description. Id. at 1159-60.
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`Finally, in ICU Medical, the specification described a medical valve with a (cid:147)preslit seal(cid:148)
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`that also included a spike. ICU Medical, 558 F.3d at 1377-79. Yet, the claims were (cid:147)spike-
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`optional,(cid:148) in that they neither excluded nor required a spike. Id. at 1377-78. However, the
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`specification (cid:147)describe[d] only medical valves with spikes.(cid:148) Id. at 1378. Accordingly, ICU
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`Medical held that the (cid:147)spikeless(cid:148) claims lacked written description support. Id. at 1378-79.
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`Like the patents in LizardTech, Tronzo, and ICU Medical, T