Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 1 of 9 PageID #:46866
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Judge Sharon Johnson Coleman
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`Civil Action No. 05 C 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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`TT’S RULE 50 MOTION ON
`CQG’s WRITTEN DESCRIPTION DEFENSE
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`Page 1 of 9
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`TRADING TECH EXHIBIT 2070
`CQG & CQGT v. Trading Technologies
`CBM2015-00058
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 2 of 9 PageID #:46867
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`I.
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`INTRODUCTION
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`Plaintiff acknowledges that Rule 50 motions are generally brought at the close of a
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`party’s case. However, the rule states that a motion can be brought “any time before the case is
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`submitted to the jury” once “a party has been fully heard on an issue during a jury trial.” FRCP
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`Rule 50 (a). CQG has 7 witnesses left1 in their case. None of those witnesses are in a position to
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`address CQG’s written description defense. Therefore, all of the evidence that CQG is going to
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`put in on the issue is already of record, i.e., CQG has been fully heard. The evidence is woefully
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`inadequate to establish failure that the patent in suit fail to meet the written description
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`requirement. As a result, judgment as a matter of law should be granted for TT.
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`In addition, TT submits that it is appropriate that the Rule 50 motion be ruled on
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`expeditiously, because if the court believes that the evidence put in by CQG is sufficient to
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`submit to the jury, then TT must have an opportunity to submit a responsive case on the issue.
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`CQG bears the burden of proving the failure to meet the written description by clear and
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`convincing evidence. CQG has put in its proofs. TT has not had a full opportunity to address
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`the proofs. If the Court believes that issue is not ripe for directed verdict then TT’s responsive
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`case would comprise one witness, Dr. Pirrong, to explain to the jury how TT’s patents are
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`sufficient. Unfortunately, Dr. Pirrong is only available on Friday March 13th to present such
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`testimony. TT would rather not have to call Dr. Pirrong for this issue, but if the issue is being
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`submitted to the jury, then TT believes it is necessary. Therefore, for the reasons set forth below,
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`TT requests that the court grant it judgment as a matter of law on the issue of whether the patents
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`in suit comply with the written description requirement.
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`1 CQG has yet to call: Mr. Peterson (damages expert), Mr. Hartmann (willfulness expert); Mr. Prince (a
`TT customer rep); Mr. Schroeter (former president of CQG); Mr. Giffen (current president of CQG); Mr.
`Kemp (by video) (former president of TT) and Mr. Katin (CQG programmer).
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`1
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`Page 2 of 9
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 3 of 9 PageID #:46868
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`II.
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`BACKGROUND
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`On January 20, 2015 the court denied CQG’s summary judgment motion that the patents-
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`in-suit are invalid under the §112 written description requirement. In the ruling, the Court
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`reiterated its previous construction of the “static” limitation in the claims. The Court found that
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`“[t]he patents in suit do not expressly state that the entire price column must be static nor do they
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`exclude a price column that is static with additional features.” Dkt. 889 at p.10. These findings
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`resolve any argument that CQG could possibly make with respect to its written description
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`challenge based on the evidence at trial.
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`All “evidence” in support of CQG’s 112 defense is now in. This amounts to just two
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`things: (1) an errata sheet from TT’s expert Dr. Pirrong; and (2) a non-expert’s summary of what
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`written description means from Mr. Borsand. No other witness’ testimony even bears on the
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`written description issue.
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`The errata sheet, which is not proper evidence2, contains the following footnote on which
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`CQG seeks to base its entire 112 defense:
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`Upon reading my transcript, I realized that this portion of my testimony is potentially
`confusing and ambiguous because it may create the impression that I was stating that a
`portion of the price levels shown in the examples of Figures 3 and 4 of the patent
`specification and the corresponding pages of the provisional may not be “static.” My
`errata with respect to pages 126-187 makes clear that in the examples of Figures 3 and 4
`of the patent specification and corresponding pages of the provisional, all of the price
`levels shown are “static.”
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`DTX 2343_0001, ft nt. 1. The only other “evidence” that CQG could possibly rely on to support
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`its 112 defense is testimony from Mr. Borsand that written description means, in layman terms,
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`2 The errata sheet is nothing more than prior deposition testimony. As Dr. Pirrong was on the
`stand, thus not unavailable, his errata is inadmissible hearsay. Simply having Dr. Pirrong
`identify the document from the stand does not overcome the hearsay problem.
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`2
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 4 of 9 PageID #:46869
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`that the patent specification needs to provide support for what is in the claims. Tr.T at p. 1407
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`ln. 22 to p. 1408 ln. 4.
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`The above cited evidence does not come close to carrying the day in establishing a 112
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`defense and no reasonably jury could find otherwise. Dr. Pirrong’s errata merely notes that in
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`the examples in the patent, all of the displayed price levels are static and that the patent does not
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`provide an example of an additional non-static zone. This is completely irrelevant to the 112
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`issue.
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`III. ARGUMENT
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`CQG’s 112 defense is based on the flawed proposition that if the claims are interpreted to
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`“cover” a product that has a price column that has a range of price levels that are static and other
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`ranges of price levels that are not static, and the specification does not describe such a product,
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`then the patent does not meet the written description requirement. CQG’s argument is flawed
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`because its focus is entirely wrong; the focus should be on the claims, not characteristics of the
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`accused product.
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`The written description requirement is met if the description in the specification
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`“reasonably conveys to those skilled in the art that the inventor had possession of the claimed
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`subject matter as of the filing date.” Ariad Pharm. Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
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`(Fed. Cir. 2010). While the recited elements of a claim must have adequate written description
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`support, there is no requirement that the specification describe features of a product that are not
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`recited in the claims. See, e.g., Amgen Inc. v. Hoechst Marion Roussel, 314 F.3d 1313, 1333
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`(Fed. Cir. 2003) (“the patentee need only describe the invention as claimed, and need not
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`describe an unclaimed method of making the claimed product”); Ethicon Endo-Surgery, Inc. v.
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`U.S. Surgical Corp., 93 F.3d 1572, 1581-82 (Fed. Cir. 1996) (explaining that a specification can
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 5 of 9 PageID #:46870
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`fully support a claim even if it does not describe some features in a product that is within the
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`scope of the claim). In other words, the proper focus is not on the features of the accused
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`product; rather it is on the features in the claim.
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`Here the claims recite a “static display of prices” and a “common static price axis.” The
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`controlling construction of “static” is a display of prices or a line “comprising price levels that do
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`not change positions unless a manual re-centering or re-positioning command is received,
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`meaning if there is movement, it must be by manual command as opposed to automatic.” See
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`Court’s construction as submitted to the jury. Thus, the written description requirement of §112
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`only requires support for a range of price levels (i.e., “a line of price levels” or a “display of
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`prices”) in the display or axis that meet these claim terms, i.e., that are static. There is no dispute
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`that the specification describes a static column of prices that fully supports the “static” claim
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`limitations. The specification clearly establishes that the inventors were in possession of the
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`claimed invention.
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`The written description requirement does not demand that the specification provide a
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`description of a price axis with some but not all of the price levels being static, as argued by
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`CQG. These features are not elements of the claim. Moreover, this is not a case where the
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`specification has limiting language that creates a written description issue. See, e.g., Crown
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`Packaging Tech. v. Ball Metal Bev. Container Corp., 635 F.3d 1373, 1381 (Fed. Cir. 2011)
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`(where the specification describes an essential element missing from the claim, there may be a
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`written description issue). Indeed, the Court has already found that that is not the case, stating
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`“[t]he patents in suit do not expressly state that the entire price column must be static nor do they
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`exclude a price column that is static with additional features.” Dkt. 889 at 10. Accordingly,
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`Page 5 of 9
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 6 of 9 PageID #:46871
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`there is no conceivable way CQG can meet its clear and convincing burden to prove its §112
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`defense and there is no point wasting time on this issue with the jury.
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`The Dr. Pirrong errata, even if admissible, merely establishes that the patent specification
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`does not provide an example of a price column with some prices static and some not static – an
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`irrelevant fact, because the claims do not recite a price column with some prices static and some
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`not static. Mr. Borsand’s testimony merely provided a high level layman’s statement of the
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`meaning of written description. This “evidence” does not support a finding of invalidity under
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`112 – something that CQG must prove by clear and convincing evidence. Hynix Semiconductor
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`Inc. v. Rambus, Inc., 645 F.3d 1336, 1351 (Fed. Cir. 2011).
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`Notably, to prove invalidity under 112, CQG must establish that a person of ordinary
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`skill in the art reading the specification would not understand that the inventors were in
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`possession of the claimed invention. Crown Packaging Tech., 635 F.3d at 1381 (Fed. Cir. 2011).
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`CQG has no such testimony or evidence. The Court has already precluded testimony from
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`CQG’s sole technical expert, Dr. Mellor, on this issue and indeed he did not address it. Neither
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`Dr. Pirrong’s errata sheet nor Mr. Borsand’s testimony discuss this. No other CQG witness is
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`qualified to provide an opinion on the issue or even has a background to address it. There is
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`simply no evidence to support CQG’s position. As this Court has noted in denying CQG’s
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`summary judgment motion, resolution of the §112 issue in CQG’s favor would require the Court
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`to weigh expert testimony, and because CQG can provide no such testimony, there is no way that
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`CQG could meet its burden of proving the patents-in-suit invalid for lack of written description.
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`Dkt. 889 at 10-11. The trial has not brought forth any evidence to alter this conclusion. Because
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`no reasonable jury could reach a finding of invalidity under 112 based on the sum total of CQG’s
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 7 of 9 PageID #:46872
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`“evidence” on this issue, the Court should grant judgment as a matter of law under Rule 50.
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`FRCP Rule 50
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`Importantly, permitting the 112 defense to be sent to the jury will create significant jury
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`confusion. There has been no discussion of this issue whatsoever in any of the testimony. At
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`most, the jury has heard one passing reference to the phrase “written description” in Mr.
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`Borsand’s testimony. It makes no sense to provide detailed instructions to the jury on an issue
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`for which the jury has heard no evidence and on which there is no conceivable way it could find
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`invalidity.
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`IV. CONCLUSION
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`No reasonable jury could reach a finding of invalidity under 112 based on CQG’s
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`purported “evidence” on that issue. According, the Court should grant TT judgment as a matter
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`of law on the written description issue.
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`By:
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`Respectfully submitted,
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`s/Cole B. Richter
`Leif R. Sigmond, Jr. (ID No. 6204980)
`(sigmond@mbhb.com)
`Matthew J. Sampson (ID No. 6207606)
`(sampson@mbhb.com)
`Michael D. Gannon (ID No. 6206940)
`(gannon@mbhb.com)
`S. Richard Carden (ID No. 6269504)
`(carden@mbhb.com)
`Jennifer M. Kurcz (ID No. 6279893)
`(kurcz@mbhb.com)
`Cole B. Richter (ID No. 6315686)
`(richter@mbhb.com)
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606
`Tel.: (312) 913-0001
`Fax: (312) 913-0002
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`6
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`Date: March 12, 2015
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`Page 7 of 9
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 8 of 9 PageID #:46873
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`Steven F. Borsand (ID No. 6206597)
`(Steve.Borsand@tradingtechnologies.com)
`Trading Technologies International, Inc.
`222 South Riverside
`Suite 1100
`Chicago, IL 60606
`Tel: (312) 476-1000
`Fax: (312) 476-1182
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`Attorneys for Plaintiff,
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
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`7
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`Page 8 of 9
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`Case: 1:05-cv-04811 Document #: 1163 Filed: 03/12/15 Page 9 of 9 PageID #:46874
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`CERTIFICATE OF SERVICE
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`I certify that a copy of the foregoing TT’S RULE 50 MOTION ON CQG’s WRITTEN
`DESCRIPTION DEFENSE was served on March 12, 2015 as follows:
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`Via Filing Via this Court's CM-ECF System, which caused a copy to be served on all
`registered users and Via Email:
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`Counsel for CQG, Inc., and CQGT, LLC:
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`Adam G. Kelly
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`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
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`akelly@loeb.com
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`William Joshua Voller III
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
`wvoller@loeb.com
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`Laura A. Wytsma
`Loeb & Loeb LLP
`10100 Santa Monica Boulevard, Suite 2200
`Los Angeles, CA 90067
`lwytsma@loeb.com
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`s/ Cole B. Richter
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`8
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`Page 9 of 9
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