Case: 1:10-cv-00715 Document #: 550 Filed: 06/02/14 Page 1 of 5 PageID #:24443
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`
`Plaintiff,
`
`
`Case No. 10 C 715
`(Consolidated with:
`10 C 716, 10 C 718,
`10 C 720, 10 C 721,
`10 C 726, 10 C 882,
`10 C 883, 10 C 884,
`10 C 885, 10 C 929,
`10 C 931)
`
`Judge Virginia M. Kendall
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`v.
`
`
`BCG PARTNERS, INC.
`
`
`Defendant.
`
`MEMORANDUM IN SUPPORT OF THE IBG DEFENDANTS’ MOTION TO STAY
`PROCEEDINGS PURSUANT TO SECTION 18(b) OF THE AMERICA INVENTS ACT
`
`
`
`Page 1 of 5
`
`
`
`TRADING TECH EXHIBIT 2067
`IBG ET AL. v. TRADING TECH
`CBM2015-00181
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`
`Plaintiff,
`
`
`Case No. 10 C 715
`(Consolidated with:
`10 C 716, 10 C 718,
`10 C 720, 10 C 721,
`10 C 726, 10 C 882,
`10 C 883, 10 C 884,
`10 C 885, 10 C 929,
`10 C 931)
`
`Judge Virginia M. Kendall
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`v.
`
`
`BCG PARTNERS, INC.
`
`
`Defendant.
`
`MEMORANDUM IN SUPPORT OF THE IBG DEFENDANTS’ MOTION TO STAY
`PROCEEDINGS PURSUANT TO SECTION 18(b) OF THE AMERICA INVENTS ACT
`
`
`
`Page 1 of 5
`
`
`
`TRADING TECH EXHIBIT 2067
`IBG ET AL. v. TRADING TECH
`CBM2015-00181
`
`
`
`Case: 1:10-cv-00715 Document #: 550 Filed: 06/02/14 Page 2 of 5 PageID #:24444
`
`Defendants IBG LLC and Interactive Brokers LLC (collectively, “IBG”) hereby move,
`
`pursuant to Section 18(b) of the America Invents Act (“AIA”), to stay this litigation pending the
`
`outcome of TD Ameritrade’s petition for Covered Business Method Review (“CBM Review”) of
`
`U.S. Patent Nos. 6,766,304; 6,772,132; 7,533,056; 7,676,411; and 7,685,055 (collectively, the
`
`“CBM Patents”).
`
`A stay in this case is appropriate for all of the reasons set forth in the opening brief in
`
`support of TD Ameritrade’s Motion to Stay (Dkt. No. 546), which IBG incorporates here. In
`
`particular, each of the four factors enumerated in AIA § 18(b) weighs in favor of a stay:
`
` First, a stay will simplify—and possibly eliminate—asserted patents and issues for
`
`trial. This case is complex and needs to be simplified. Trading Technologies (“TT”)
`
`has asserted 12 patents against IBG, including all of the CBM Patents. See Dkt. No.
`
`252. According to current statistics, there is very little chance that any of the five
`
`CBM Patents will survive CBM Review. Dkt. No. 546, Exhibits K, M, M-1 – M-11,
`
`N. At a minimum, if any claims survive, they will most likely be narrowed or
`
`significantly changed, and the proceedings will create an important record on issues
`
`such as claim construction, scope of disclosure, and prior art. The CBM proceedings
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`will also likely impact the other seven patents asserted against IBG. Six of those
`
`patents are in the same patent families as the CBM Patents and share the same or
`
`similar claim terms and specifications. See Dkt. No. 252, Exhibits C, E, G, I, J, L, N,
`
`P, R, U, V. Thus, the PTO’s determinations on claim construction, the scope of
`
`patent disclosures, and prior art will likely be relevant to the other patents. The
`
`seventh patent asserted against IBG, while from a different patent family, is
`
`
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`-1-
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`Page 2 of 5
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`Case: 1:10-cv-00715 Document #: 550 Filed: 06/02/14 Page 3 of 5 PageID #:24445
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`technologically related to the others such that the same prior art is relevant. Thus,
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`CBM Review will likely impact all asserted patents in this case.
`
` Second, this litigation is in the same early stage as the TD Ameritrade case: the
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`parties have never exchanged initial disclosures, have not conducted any discovery,
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`no depositions have been taken, and a trial date has not been set. Now is the most
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`appropriate time to grant a stay – before the parties engage in extensive party and
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`third party discovery on all 12 asserted patents, before witnesses are deposed for
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`patents that may likely be eliminated from the case or changed, and before the Court
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`and parties expend resources on claim construction for patents or claims that may be
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`cancelled or changed.
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` Third, TT will not be unduly prejudiced by a stay. The BookTrader functionality of
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`the accused IBG software was first introduced beginning in 2004, yet TT waited until
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`2010 to file a lawsuit against IBG. See Dkt. No. 404 at pp. 66, 67. Moreover, TT has
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`not conducted this litigation with urgency. TT never sought a preliminary injunction
`
`against IBG. TT previously urged the Court to stay this case while it appealed this
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`Court’s summary judgment order to the Federal Circuit. See Dkt. No. 479 at 15–18.
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`And this case was effectively stayed for 16 months during the pendency of TT’s
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`appeal. TT’s conduct undermines any suggestion that it would now suffer undue
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`prejudice as a result of a stay. Furthermore, a stay will not provide IBG with any
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`tactical advantage. To the contrary, the Court and all parties will benefit from a stay
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`by the likely elimination of patents and PTO review record.
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` Fourth, a stay will reduce the burden of litigation on the parties and on the Court.
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`The parties will benefit from avoiding the unnecessary expense of litigating claims of
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`
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`-2-
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`Page 3 of 5
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`Case: 1:10-cv-00715 Document #: 550 Filed: 06/02/14 Page 4 of 5 PageID #:24446
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`the five CBM patents that may ultimately be invalidated or narrowed through CBM
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`Review. Likewise, a stay will relieve the Court from expending judicial resources in
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`deciding claim construction, invalidity, and non-infringement issues that may be
`
`mooted. Furthermore, CBM review will have a trickle-down effect on the other
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`seven patents asserted against IBG. The five CBM Patents share the same or similar
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`claim terms and patent specifications, and the same inventors with six other asserted
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`patents. See supra at 1. And because TT accuses the same technology of infringing
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`all 12 patents asserted against IBG (see Dkt. No. 252), the same discovery and prior
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`art will be relevant to all asserted patents. Given the relatedness of all asserted
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`patents, it would not be an efficient expenditure of the parties’ or Court’s resources to
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`proceed piecemeal on only some patents.
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`For the foregoing reasons, and for the reasons set forth in support of TD Ameritrade’s
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`Motion to Stay (Dkt. No. 546), IBG respectfully requests that the Court stay this litigation
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`pending the outcome of TD Ameritrade’s petition for CBM Review.
`
`Dated: June 2, 2014
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/s/ Natalie J. Morgan
`Michael Brett Levin
`Wilson Sonsini Goodrich & Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`(650) 493-9300
`
`Natalie J. Morgan
`Wilson Sonsini Goodrich & Rosati
`12235 El Camino Real, Suite 200
`San Diego, CA 92130
`(858) 350-2300
`
`Attorneys for Defendants IBG LLC and Interactive
`Brokers LLC
`
`-3-
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`Page 4 of 5
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`Case: 1:10-cv-00715 Document #: 550 Filed: 06/02/14 Page 5 of 5 PageID #:24447
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 2, 2014, I electronically filed this MEMORANDUM IN
`SUPPORT OF IBG DEEFNDANTS’ MOTION TO STAY PROCEEDINGS PURSUANT
`TO SECTION 18(b) OF THE AMERICA INVENTS ACT with the Clerk of the Court using
`the CM/ECF system which will send notification of such filing to all counsel of record.
`
`
`
`
`
`
`/s/ Natalie J. Morgan
`Natalie J. Morgan
`
`
`
`-4-
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`Page 5 of 5
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