Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 1 of 16 PageID #:26543
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`Case No. 10 C 715
`(Consolidated with:
`10 C 718,
`10 C 720, 10 C 721,
`10 C 726, 10 C 882,
`10 C 884,
`
`Judge Virginia M. Kendall
`Magistrate Geraldine S. Brown
`
`)))))))))))))
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Plaintiff,
`
`v.
`
`BCG PARTNERS, INC.,
`
`Defendant.
`
`SUPPLEMENTAL RESPONSE OF CERTAIN DEFENDANTS
`TO TT’S EMERGENCY MOTION
`
`This Court should grant TT’s motion solely as it relates to the stay entered under the
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`Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125 Stat. 284, 329-31 (2011)
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`and simultaneously enter a new stay under the Court’s inherent and discretionary power to
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`manage its docket.1 See Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964,
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`980 (7th Cir. 2005) (district courts possess the inherent power to control the disposition of cases
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`on its docket; incidental to that power is the power to stay proceedings). Alternatively, the Court
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`should take briefing on case management.2
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`1 Defendants TradeStation Securities, Inc. & TradeStation Group, Inc., IBG LLC & Interactive
`Brokers LLC, and CQG, Inc. & CQGT, LLC (“Defendants”) file this supplemental response
`under the Court’s July 16, 2015 supplemental briefing schedule, which granted Defendants leave
`to file additional briefing in opposition to TT’s emergency motion (Dkt. 604). Dkt. 610.
`2 If the Court is not inclined to consider a discretionary stay under its inherent powers at this time
`(and Defendants believe that there are ample grounds to do so), then Defendants reserve their
`right to move for a discretionary stay or a stay under the AIA as additional CBMR petitions are
`filed and/or instituted.
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`Page 1 of 16
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`
`
`TRADING TECH EXHIBIT 2021
`IBG ET AL. v. TRADING TECH
`CBM2015-00181
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 2 of 16 PageID #:26544
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`There are only two issues that need to be decided by this Court: (1) whether the
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`consolidated case should remain stayed, and (2) if so, whether the current stay should be the
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`mechanism for staying the case prospectively. Although Defendants assert that the case should
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`remain stayed, the current stay likely should be dissolved under the AIA and a new stay
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`implemented. (The law under the AIA is not well-developed, but Defendants do not contest that
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`the dismissal of the TD Ameritrade covered business method review proceedings removed the
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`original basis for the stay and the law currently requires an instituted proceeding for an AIA
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`stay.)
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`The parties do not dispute the following relevant facts. TD Ameritrade filed and
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`successfully obtained institution on four Covered Business Method Review (“CBMR”)
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`reexamination proceeding petitions with the U.S. Patent and Trademark Office’s (“PTO”) Patent
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`Trial and Appeal Board (“PTAB”) on May 19 and 20, 2014 regarding the validity of U.S. Patent
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`Nos. 7,533,056 (“the ’056 patent”), 7,685,055 (“the ’055 patent”), 6,772,132 (“the ’132 patent”),
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`and 7,676,411 (“the ’411 patent”). Dkt. 583 at 1-2. In instituting those CBMR petitions in
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`December 2, 2014, the PTAB found that each of the patents were more likely than not invalid
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`under 35 U.S.C. § 101, and in the case of the ’056 and ’055 patents, also invalid under § 103. Id.
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`at 2. On March 25, 2015 this Court entered the current stay under Section 18(b)(1) of the AIA,
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`finding that a stay “is most efficient for the parties, best conserves judicial resources, and avoids
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`piecemeal litigation.” Id. at 1-2, 4, 11; Jul. 16, 2015 Hr’g Tr. at 4:5-18 (J. Kendall). TT
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`immediately appealed that decision under Section 18(b)(2) of the AIA. (Dkt. 585).
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`2
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`Page 2 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 3 of 16 PageID #:26545
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`Despite the pending CBM proceedings and appeal, TT and TD Ameritrade settled earlier
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`this month.3 Dkt. 599 (joint stipulation of dismissal); Dkt. 601 (order of dismissal of TD
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`Ameritrade action). As part of that settlement, TT and TD Ameritrade jointly moved the PTO to
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`terminate the pending CBMR proceedings, Ex. A (Rule 28(j) letter) at Ex. 1, which was granted
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`on July 7, 2015. Id. Thus, the statutory basis under which this Court had the authority to grant
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`the March 25, 2015 stay under the AIA—i.e., the pendency of the TD Ameritrade CBMR
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`proceedings—no longer exists. Dkt. 609 at 2; Dkt. 604 at 2.
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`However, TT should not be able to duck the trial at the PTAB to come back to this Court.
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`Defendants are now filing new petitions. A petition on the ‘304 patent was filed today; more are
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`coming forthwith.
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`I.
`
`The Court Should Terminate the Current Stay to Prevent TT from Needlessly
`Burdening the Federal Circuit with an Unnecessary Appeal.
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`Despite TT’s suggestion that it requires emergency relief to address an urgent matter, its
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`concerns are self-imposed. See Jul. 16, 2015 Hr’g Tr. at 5:18-20 (“[W]e don’t want to drop the
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`appeals, but we want to get whatever we need to get to the Federal Circuit as soon as possible.”).
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`Contrary to TT’s cries of emergency, nothing prevents it from moving on its own to dismiss its
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`interlocutory appeal. Indeed, the very case it trumpeted in the July 16, 2015 hearing in support
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`of its motion, Intel. Ventures II LLC v. JPMorgan Chase & Co., 781 F.3d 1372 (Fed. Cir. 2015),
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`suggests that TT should have dismissed the appeal weeks ago, because the Federal Circuit was
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`divested of statutory appellate jurisdiction without a pending CBMR proceeding. Jul. 16, 2015
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`3 Contrary to TT’s strawman, there is nothing nefarious about TT’s settlement with TD
`Ameritrade. Rather, Defendants advised the Court that they were not privy to the TD
`Ameritrade settlement discussions simply to make clear that it was TT, not the Defendants, who
`waited 7 months, indeed just days before trial in each of TD Ameritrade’s CBMR proceedings,
`to settle and avoid a final determination on the validity of patents that the PTO found more likely
`than not invalid.
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`3
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`Page 3 of 16
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 4 of 16 PageID #:26546
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`Hr’g Tr. at 9:20-24 (recent Federal Circuit case interpreting Section 18 of the AIA); Intel.
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`Ventures II, 781 F.3d at 1379 (“Absent the existence of a proceeding, jurisdiction is not
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`conferred upon us by § 18(b)(2).”) (emphasis added); see Super Sack Mfg. Corp. v. Chase
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`Packaging Corp., 57 F.3d 1054, 1058-59 (“[A] patentee defending against an action for a
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`declaratory judgment of invalidity can divest the trial court of jurisdiction over the case by filing
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`a covenant not to assert the patent at issue against the putative infringer.”).
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`Recognizing that the Federal Circuit expends tremendous time and effort preparing for
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`oral argument, and cognizant that this Court has the inherent power to enter a new stay, Tex.
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`Indep. Producers, 410 F.3d at 980, the sensible course of action here is to terminate the current
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`stay and then, for the reasons set for the below, enter a new stay under the Court’s inherent
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`powers. By setting aside questions of statutory appellate jurisdiction and whether this Court’s
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`maintenance of the current stay under alternate grounds also moots TT’s appeal, the Court may
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`instead simply terminate the AIA-based stay, thereby forcing TT to dismiss its already moot
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`appeal.4
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`II.
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`The Court Should Enter a New Stay Under Its Inherent Power.
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`The Supreme Court, the Seventh Circuit, and Federal Circuit have long recognized that
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`district courts have the inherent and discretionary power to manage their dockets by staying
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`proceedings. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (“[T]he power to stay
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`proceedings is incidental to the power inherent in every court to control the disposition of causes
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`on its docket . . . . How this can best be done calls for the exercise of judgment, which must
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`4 By terminating the current stay, not only would the Federal Circuit lack statutory appellate
`jurisdiction, but TT would also lack Article III standing without a redressable harm. Monsanto
`Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (“Standing under Article III of the
`Constitution requires that an injury be . . . redressable by a favorable ruling.”); see also Ex. A at
`1 (TT will withdraw appeal if AIA stay is lifted).
`
`4
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`Page 4 of 16
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 5 of 16 PageID #:26547
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`weigh competing interests and maintain an even balance.”); P&G v. Kraft Foods Global, Inc.,
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`549 F.3d 842, 848-49 (Fed. Cir. 2008); Tex. Indep. Producers, 410 F.3d at 980 (7th Cir. 2004).
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`This inherent and discretionary power is independent of any statutory scheme and readily
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`applies to stays pending conclusion of PTO reexaminations—including CBMR
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`reexaminations—both before and after enactment of the AIA. Dkt. 583 at 3 (recognizing pre-
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`AIA application of a three-factor stay test in the context of inter partes and ex parte PTO
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`reexamination proceedings); Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426-27 (Fed. Cir. 1988)
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`(“Courts have inherent power to manage their dockets and stay proceedings, including the
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`authority to order a stay pending conclusion of a PTO reexamination”) (internal citations
`
`omitted); Ignite USA, LLC v. Pac. Mkt. Int’l, LLC, No. 14 C 856, 2014 U.S. Dist. LEXIS 73412
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`at *5 (N.D. Ill. May 29, 2014)5 (applying three-factor stay test to determine whether to stay the
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`case pending post-AIA inter partes review reexamination at the PTO under Court’s inherent
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`power to manage docket); P&G, 549 F.3d at 849 (inherent power to stay is distinct from any
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`statutory scheme authorizing a stay pending PTO reexamination proceedings); VirtualAgility,
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`Inc. v. Salesforce.com, 759 F.3d 1307, 1316 (Fed. Cir. 2014) (acknowledging that a motion to
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`stay could be granted [under a court’s inherent powers] even before the PTAB rules on a
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`[CBMR] post-grant review petition . . . .”); Intel. Ventures II, 781 F.3d at 1379 (acknowledging
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`court’s ability to issues a stay in view of a CBMR petition under its inherent authority).
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`Regardless of the type of PTO reexamination requested or instituted—i.e., whether the
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`proceeding is a pre-AIA inter partes or ex parte reexamination or post-AIA CBMR, inter partes,
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`or post grant review reexamination proceeding—courts in this district consider the same three-
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`factor test when deciding to stay an action pending a requested or already instituted
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`5 Copies of unpublished decisions cited in this supplemental response are included in Exhibit F.
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`5
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`Page 5 of 16
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 6 of 16 PageID #:26548
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`reexamination proceedings (“NDIL Stay Factors”): (1) whether a stay will unduly prejudice or
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`tactically disadvantage the non-moving party; (2) whether a stay will simplify the issues in
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`question and streamline the trial; and (3) whether a stay will reduce the burden of litigation on
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`the parties and on the court. See Tap Pharm. Prods. v. Atrix Labs., Inc., No. 03 C 7822, 2004
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`U.S. Dist. LEXIS 3684 at *4 (N.D. Ill. Mar. 4, 2004) (NDIL Stay Factors applicable to already
`
`instituted, pre-AIA reexamination proceeding); Dkt. 583 at 3 (NDIL Stay Factors applicable to
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`pre-AIA inter partes and ex parte reexamination proceedings); Ignite USA, 2014 U.S. Dist.
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`LEXIS 73412, at * 5 (NDIL Stay Factors applicable to not-yet-instituted, post-AIA inter partes
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`review reexamination); Black & Decker, Inc. v. Positec USA, Inc., No. 13 C 3075, 2013 U.S.
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`Dist. LEXIS 153795, at *7 (NDIL Stay Factors applicable to not-yet-instituted, post-AIA inter
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`partes review reexamination).
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`a. The NDIL Stay Factors are Nearly Identical to the Previously Considered
`AIA Factors.
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`As this Court previously recognized, these NDIL Stay Factors are nearly identical to the
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`four stay factors codified in the AIA. Dkt. 583 at 3. The only difference is that while courts in
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`this district regularly examine whether discovery is complete and whether a trial date has been
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`set as part of NDIL Stay Factors (1) and (3), the AIA codified this consideration as a separate
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`factor. Compare Ignite USA, 2014 U.S. Dist. LEXIS 73412, at *6 (“The fact that PMI is seeking
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`a stay at the earliest stage of the litigation diminishes the potential effect of any tactical
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`disadvantage Ignite could face) and Black & Decker, 2013 U.S. Dist. LEXIS 153795, at *3 (“a
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`stay at this early stage of the litigation could significantly limit litigation expenses and streamline
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`the proceedings, particularly should the PTO invalidate the claim at issue . . . .”) with AIA, Pub.
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`L. No. 112-29, § 18(b)(1) (“whether discovery is complete and whether a trial date has been set”
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`identified as a distinct separate stay factor under the AIA). Accordingly, this Court’s well-
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`6
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`Page 6 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 7 of 16 PageID #:26549
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`reasoned AIA analysis, which resulted in the March 25, 2015 order granting a stay, remains
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`applicable here.
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`b. The NDIL Stay Factors Strongly Favor a Stay for the Same Reasons that the
`AIA Factors Previously Favored a Stay.
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`Despite TT’s efforts, nothing has improved its stock. See Dkt. 583 at 3-11 (analysis).
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`Two parties settled, and a few months have passed. But nothing else has transpired in this case.
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`The parties have not conducted any discovery. The Court has not set a case management
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`schedule or a trial. And the PTAB hasn’t withdrawn its previous determination that four of the
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`asserted patents are more likely than not invalid for the reasons set forth in TD Ameritrade’s
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`petitions.
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`If anything, the case for a stay is stronger now than it was when this Court granted its
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`AIA-based stay. In particular, earlier today TradeStation filed a CBMR petition on U.S. Patent
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`Nos. 6,766,304 (“the ’304 patent”). CBM2015-00161. This was done on TradeStation’s own
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`initiative, its own expense, by its own lawyers, controlling in every way the timing and content
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`of the petition. Although TradeStation acted on its own in filing this petition, the petition by its
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`nature makes use of materials available from prior petitions. That petition is similar to both
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`CQG’s CBMR petition on the same patent and TD Ameritrade’s successfully instituted CBMR
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`petition on the ’132 patent.
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`In addition, Defendants have already advised the Court that they “plan to request that the
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`PTAB decide the validity of TT’s patents, by refiling challenges to most (if not all) of the
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`patents-in-suit [including those] which were on the cusp of trial [before the PTAB].” For CQG’s
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`part, it is preparing to file CBMR petitions on the ’411, ’374, ’768, and ’724 patents in the next
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`several weeks.
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`7
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`Page 7 of 16
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`Further, CQG will be filing a motion for reconsideration of the PTAB’s July 10 decision
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`denying institution of CQG’s CBMR petitions regarding the ’304 and ’132 patents. See Ex. B
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`(Papers 12 and 13). Importantly, the PTAB’s decision not to institute CBMR proceedings for the
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`’304 and ’132 patents was not a decision on the merits of the petitions. Rather, in both instances
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`the PTAB refused to institute CBMR reexamination proceedings on jurisdictional grounds,
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`finding that 35 U.S.C. § 325(a)(1) barred CQG from the CBMR program as to these patents due
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`to a previously filed but dismissed declaratory judgment action. Id. at Paper 12, p. 9; id. at Paper
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`13, p. 9. That was an abuse of discretion. Regardless, the PTAB expressly indicated that while
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`they denied the petitions, they “express no opinion regarding the likelihood that [CQG] would
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`prevail in establishing that any of the challenged claims of the ’304 or ’132 patents are
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`unpatentable for the reasons set forth in the Petitions.” Id. Under 37 C.F.R. § 42.71(d), CQG’s
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`motion for reconsideration is due no later than August 10, however, CQG intends to file its
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`motion later this week or early next week to expedite the process.
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`Defendants’ current efforts challenge the validity of the ’132, ’304, ’411, ’374, ’768, and
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`’724 patents. Given the PTAB findings regarding the TD Ameritrade petitions (that the ’132,
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`’411, ’055, and ’056 patents are more likely than not invalid), these efforts will likely dispose of
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`the 197 asserted claims across these 6 patents. Thus, the case for a new stay is even stronger
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`than the case TD Ameritrade made for the AIA Stay, where only 4 patents and 118 asserted
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`claims were under CBM review.
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`Turning to the NDIL Stay Factors in view of this decidedly pro-defendant landscape and
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`the Court’s previous findings, a new stay remains appropriate.
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`8
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`Page 8 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 9 of 16 PageID #:26551
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`i. A New Stay Will Not Unduly Prejudice or Provide a Tactical
`Disadvantage to TT.
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`The Court previously found that “this factor weighs neither for nor against a stay.” Dkt.
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`583 at 8, 10. But the Court did not consider the stage of the litigation and discovery, because the
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`AIA required the Court to consider that factor separately. See supra. And, in considering the
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`stage of the litigation and discovery, the Court previously found that “[t]he stage of the litigation
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`therefore strongly supports a stay.” Dkt. 583 at 8 (emphasis added). The same two analyses are
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`applicable here, and considering them together counsels in favor of a stay.
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`While TT may assert that the parties are competitors6, TT never moved for preliminary
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`injunctive relief. Dkt. 583 at 9-10 (holding that the alleged competitor relationship between TT
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`and TD Ameritrade was undermined by TT’s litigation delays). And, after it requested and
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`obtained interlocutory certification to appeal this Court’s ’411 summary judgment decision, TT
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`did nothing during what became an 18-month de facto stay. See Dkt. 485 (July 31, 2012 Rule
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`54(b) certification); Dkt. 510 (January 29, 2014 post-appeal entry setting status hearing). As this
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`Court properly found just a few months ago, “TT’s cries of undue prejudice are belied by its
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`approach to this litigation.” Dkt. 583 at 10 (citing six district court cases for the proposition that
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`a patentee’s failure to seek a preliminary injunction and its delay in pursuing and maintaining the
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`suit contradicts its claims that it will now be unduly prejudiced by a stay).
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`TT may argue that the Defendants had an opportunity to join the TD Ameritrade CBMR
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`petitions and that the Defendants’ failure to seek joinder inures to their detriment. This would,
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`however, ignore the fact that CQG actually filed its own CBMR petitions on the ’132 and ’304
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`patents immediately after the PTAB instituted CBMR petitions on the ’132, ’411, ’055, and ’056
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`6 Defendants dispute that they are competitors with TT. For example, whereas IBG and
`TradeStation are brokers, TT is not. Further, CQG does not view TT as a competitor as to
`charting and analytics.
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`9
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`Page 9 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 10 of 16 PageID #:26552
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`patents.7 Compare Dkt. 583 at 2 (PTAB’s December 2, 2014 institution of TD Ameritrade’s
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`CBMR petitions) with Dkt. 1073 (Case No. 05-cv-4811) at 3, n.1 (CQG’s January 9, 2015
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`CBMR filings). And as this Court previously observed, the patents asserted in this action are
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`closely related. Thus, by extension, any ruling on the invalidity or validity of the ’132 and ’304
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`patents would likely “provide guidance on a number of the issues concerning the non-CBM
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`Patents.” 8 Dkt. 583 at 6 (observing that there are common claim terms across the asserted
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`patents).
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`Moreover, TT’s argument ignores the very precedent cited by this Court when it granted
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`the March 2015 stay. There the Court recognized that it is “not unreasonable for [a] party to
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`defer seeking CBM review until [a] motion affecting challenged patents was resolved.” Dkt. 583
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`at 9 (citing Zillow, Inc. v. Trulia, Inc., No. C12-1549JLR, 2013 WL 5530573, at *7 (W.D. Wash.
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`Oct. 7, 2013). Thus, by extension, Defendants cannot be faulted for deferring their own petitions
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`or refusing to join in TD Ameritrade’s instituted petitions, which the PTAB found were more
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`likely than not to invalidate the ’411, ’055, ’056, and ’132 patents. TT also ignores the
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`incredible cost associated with CBMR filings and the PTAB’s unfavorable treatment of joined
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`petitioners in the CBMR process. See infra. Addressing cost, the PTO filing fee alone for a
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`CBMR petition is $12,000 at filing and $18,000 at institution, which does not take into account
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`any costs for the preparation of a petition or the costs of participating in instituted proceedings,
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`which, as this Court has seen, can involve a significant number of claims. 37 C.F.R. § 42.15(b)
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`(filing fees); Dkt. 583 at 9 (claims). Defendants should not be penalized for conserving both
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`7 CQG’s petitions remain subject to a motion for reconsideration. See supra at 7. And by rule,
`IBG and TradeStation are not permitted to request joinder until CQG’s petitions are instituted as
`proceedings. 37 C.F.R. § 42.222(b).
`8 By the same logic, any ruling on the validity of the six patents for which Defendants have filed
`or intend to file CBMR petitions would also provide guidance on other issues in this case.
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`10
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`Page 10 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 11 of 16 PageID #:26553
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`their own and the PTAB’s resources. And although those petitions were successfully instituted,
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`joinder would likely mean that the Defendants could not raise additional grounds that were not
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`included in TD Ameritrade’s petitions. See, e.g., Ex. C (NetApp, Inc. v. PersonalWeb
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`Technologies, LLC, IPR2013-00319, Paper 18 at 5 (denying joinder because the petition
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`challenged a new claim, and added new declarations and arguments)); Ex. D (Sony Corp. of Am.
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`V. Network-1 Sec. Solutions, Inc., IPR2013-00386, Paper 16 at 7 (denying joinder because the
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`petition challenged a new claim, asserted new grounds of unpatentability, and asserted new prior
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`art references)); Ex. E (Unified Patents, Inc. v. PersonalWeb Technologies, LLC, IPR2014-
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`00702, Paper 12 at 5 (denying joinder because the patent owner may need additional discovery to
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`determine who was the real-parties-in-interest)).
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`Accordingly, there is no evidence that the Defendants’ currently-pending and prospective
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`petitions were filed only to delay. Indeed, Defendants would have preferred if TT did not seek to
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`dismiss the CBMR proceedings, which were only five months away from conclusion at the time
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`TT sought to have them dismissed. Importantly, the parties will know if the pending or
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`prospective petitions will be instituted in the next 6-9 months.9 And, once instituted, the CBMR
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`proceedings are statutorily limited to 1 year. AIA, Pub. L. No. 112-29, § 18(a)(1); 35 U.S.C. §
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`326(a)(11). In other words, “the delay is not extreme.” Dkt. 583 at 9. “Moreover, the potential
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`for delay, by itself, does not establish undue prejudice.” Dkt. 583 at 9; VirtualAgility, 759 F.3d
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`at 1319.
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`9 The PTAB is likely to rule on CQG’s motion for reconsideration regarding its ’132 and ’304
`petitions in the next several months. If CQG is successful, the PTAB will likely address the
`merits of CQG’s petitions shortly thereafter. Regarding TradeStation’s ’304 petition, the soon-
`to-be filed CQG petitions, and the other anticipated Defendant petitions, a decision to institute is
`expected in 6-8 months, with decisions on whether to institute Defendants’ prospective petitions
`in the weeks thereafter. 77 Fed. Reg. at 48757; AIA, § 18(a)(1); 35 U.S.C. § 324(c).
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`11
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`Page 11 of 16
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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 12 of 16 PageID #:26554
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`Finally, “[a]lthough the consolidated cases were filed over four years ago, the parties
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`have not engaged in any discovery beyond, at the most, initial disclosures between TT and some
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`of the defendants.” Dkt. 583 at 7. No case management schedule has been set. Id. at 7-8. The
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`case undoubtedly remains at an early juncture. And, as this Court previously indicated,
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`“[s]taying a case at an early juncture can be said to advance judicial efficiency and maximize the
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`likelihood that neither the Court nor the parties expend their assets addressing invalid claims.”
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`Id. at 7 (internal quotes and citations omitted).
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`Given the circumstances, this NDIL Stay Factor favors Defendants.
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`ii. A New Stay Will Undoubtedly Simplify the Issues in Question and
`Streamline a Trial.
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`The PTAB has already found that 4 of the asserted patents and 118 of the asserted claims
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`are more likely than not invalid. Dkt. 583 at 5. This remains true today. And because
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`Defendants have committed to filing CBMR petitions on these 4 patents in addition to many of
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`the remaining asserted patents, this factor continues to weigh in favor of a stay. Undoubtedly,
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`“the PTO’s decisions will likely provide guidance” relevant to this litigation even if Defendants
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`are somehow unable to institute CBMR proceedings on all of the asserted patents. Dkt. 583 at 6.
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`Indeed, “the cancellation of any claim could significantly alter this action by clarifying and
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`narrowing the claims and defenses available to the parties here.” Id. (internal quotes and
`
`citations omitted). It is nearly inconceivable that the PTAB’s decisions on whatever petitions are
`
`instituted will not account for at least some amount of simplification for the Court and the
`
`parties.
`
`TT may argue that the § 101 issue regarding the ’132 and ’304 patents has already been
`
`adjudicated by Judge Coleman in Trading Techs. Int’l, Inc. v. CQG, Inc., Case No. 05-CV-4811
`
`and found not invalid. See Dkt. 1073 (Case No. 05-cv-4811). TT’s argument would, however,
`
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 13 of 16 PageID #:26555
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`overlook that this decision is still subject to appeal and that Judge Coleman’s decision was based
`
`on a higher burden of proof—the clear and convincing evidence standard—than the
`
`preponderance of the evidence standard applied at the PTAB. Dkt. 1073 (Case No. 05-cv-4811)
`
`at 4 (Judge Coleman applying clear and convincing standard); AIA, Pub. L. No. 112-29, §
`
`18(a)(1); 35 U.S.C. § 326(e) (PTAB applies preponderance of the evidence standard).
`
`Accordingly, Judge Coleman’s decision does little, if anything, to mitigate this Court’s previous
`
`finding that CBMR decisions will simplify and streamline this litigation. This NDIL Stay Factor
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`supports a stay.
`
`iii. A New Stay Will Reduce the Burden of Litigation on the Parties and
`the Court.
`
`For the same reason that the Court previously found that the previous stay would reduce
`
`the burden of litigation, this NDIL Stay factor also favors a stay. “If the PTO cancels some or all
`
`of the claims in the . . . CBM patents, then those claims will no longer be at issue.” Dkt. 583 at
`
`10. The PTAB or TT may also narrow or change the scope of other claims in response to prior
`
`art, written descriptions, or statutory subject matter challenges. Id.; AIA, Pub. L. No. 112-29, §
`
`18(a)(1); 35 U.S.C. 326(d) (amendment during CBMR). This Court should once again find that,
`
`without a stay, the Court may unnecessarily expend significant resources and entangle the parties
`
`in unnecessary litigation regarding the 6 patents and 197 claims that the Defendants have
`
`challenged or will soon challenge and the remaining asserted patents that the Defendants may
`
`challenge via CBMR reexamination.
`
`III.
`
`Conclusion
`
`For the reasons stated herein, the Court should grant TT’s motion (Dkt. 604) and lift the
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`current stay under Section 18 of the AIA. Then the Court should issue a new stay under its
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`inherent and discretionary authority to manage its own docket. The new stay should remain in
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 14 of 16 PageID #:26556
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`place for nine months to permit the PTAB sufficient time to consider CQG’s motion for
`
`reconsideration and decide whether to institute CBMR petitions on the 6 identified patents or any
`
`other asserted patents that Defendants may challenge by CBMR petition. If the PTAB institutes
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`fewer than 4 petitions, then the parties should be permitted to present arguments as to whether a
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`continued stay is warranted in light of the claims to be reviewed.
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 15 of 16 PageID #:26557
`
`Date:
`
`July 20, 2015
`
`Respectfully submitted,
`
`/s/ Adam G. Kelly
`Counsel for CQG, et al.
`(Case No. 10-CV-718):
`Adam G. Kelly
`William J. Voller III
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, IL 60654
`akelly@loeb.com
`wvoller@loeb.com
`
`Laura A. Wytsma
`Loeb & Loeb LLP
`10100 Santa Monica Blvd., Suite 2200
`Los Angeles, California 90067
`lwytsma@loeb.com
`
`/s/ Michael B. Levin
`Counsel for Interactive Brokers, LLC et al.
`(Case No. 10-CV-721):
`Michael B. Levin
`Wilson Sonsini Goodrich & Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`mlevin@wsgr.com
`
`Steven P. Mandell
`333 W. Wacker Drive, Suite 300
`Chicago, IL 60606
`smandell@mandellmenkes.com
`
`/s/ David J. Healy
`TradeStation, et al.
`(Case No. 10-CV-884):
`David J. Healey
`Fish & Richardson P.C.
`One Houston Center
`1221 McKinney, Suite 2800
`Houston, TX 77010
`healey@fr.com
`
`15
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`

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`Case: 1:10-cv-00715 Document #: 613 Filed: 07/20/15 Page 16 of 16 PageID #:26558
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 20, 2015, I electronically filed the foregoing document with
`the Clerk of the Court using the CM/ECF system which will send notification of such filing to all
`counsel of record.
`
`July 20, 2015
`
`By:
`
`/s/ Adam G. Kelly
`
`Adam G. Kelly
`Attorney for Defendants
`CQG, Inc. and CQGT, LLC
`
`Page 16 of 16