Case: 1:10-cv-00715 Document #: 176 Filed: 05/03/11 Page 1 of 8 PageID #:4920
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`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
`
`)))))))))))))
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Plaintiff,
`
`v.
`
`BGC PARTNERS, INC.
`
`Defendants.
`
`DEFENDANTS’ CASE MANAGEMENT STATEMENT FOR
`MAY 5, 2011 STATUS HEARING
`
`In complex patent cases involving multiple patents and defendants, the court has “broad
`discretion to administer the proceeding.” In re Katz Interactive Call Processing Patent
`Litigation, __ F.3d __, 2011 WL 607381, at *3-4 (Fed. Cir. Feb. 18, 2011) (Exhibit 2). The ten
`groups of still-active defendants in this complex, multi-patent case, by their under signed
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`counsel, jointly submit this Case Management Statement to provide suggestions as to case
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`management for the initial stage of proceedings.
`I.
`ISSUES FOR EARLY RESOLUTION TO STREAMLINE THE CASE
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`In a case of this nature, involving eleven patents and numerous accused products, it
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`would be wishful thinking to suggest that there are “silver bullet” dispositive issues that will
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`resolve everything. Nonetheless, defendants submit that there are three sets of issues which are
`susceptible of an early resolution without lengthy and costly discovery and which, regardless of
`which way the court decides them, should vastly simplify this case. These issues also stand as
`significant barriers to any serious settlement discussions between Plaintiff and the still-active
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`defendants. Accordingly, the defendants respectfully suggest that the parties be permitted to
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`A 5321
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`TRADING TECH EXHIBIT 2021
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
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`

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`Case: 1:10-cv-00715 Document #: 176 Filed: 05/03/11 Page 2 of 8 PageID #:4921
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`brief the following three issues — and that discovery unrelated to these issues be stayed for a
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`period of 120 days to permit briefing and decision on these issues:
`Application of the eSpeed Decision
`A.
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`Plaintiff has asserted six patents from the so-called “Brumfield Family.” These six
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`patents share the exact same specification. One of these patents, U.S. Patent No. 7,676,411, is
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`asserted against every defendant.
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`The court is not writing on a blank slate. A lawsuit on the two earliest Brumfield patents
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`(U.S. Patent Nos. 6,772,132 and 6,766,304, applied for in 2000 and issued in 2004), was litigated
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`by Plaintiff against eSpeed, Inc. et al. before Judge Moran in this Court (No. 04-5312). The case
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`went through claim construction, summary judgment, and trial. TT appealed this Court’s claim
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`construction and its partial summary judgment that found most of the accused electronic trading
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`software in that case — including products with an “automatic re-centering” feature — did not
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`infringe these two “Brumfield patents.”
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`In a precedential opinion, the Federal Circuit agreed with Judge Moran’s claim
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`construction and affirmed the partial summary judgment of non-infringement, as well as various
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`other rulings.
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`The Federal Circuit determined de novo that the written description of the Brumfield
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`patents disclosed only a price axis that does not change positions unless a manual re-centering
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`command is received, and never permitted automatic “re-centering” of the price axis on the user
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`interface. The Federal Circuit opinion, Trading Technologies International, Inc. v. eSpeed, Inc.,
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`is attached for the Court’s convenience (Exhibit 1).
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`Defendants submit that the subsequent Brumfield patents, which share the same written
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`description, cannot be construed to cover auto-recentering. If the court agrees, many accused
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`products will be eliminated from this case. If, however, the court finds that any claims of the
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`Brumfield patents can be construed to cover auto-recentering, then those claims are invalid for
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`lack of written description, i.e., those claims encompass subject matter not described in the
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`corresponding patent applications as originally filed.
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`Thus, regardless of which way the Court rules with respect to the impact of eSpeed, the
`case will be streamlined enormously, and the burden on the Court and the parties greatly
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`reduced.
`B.
`
`Invalidity of the ‘056 Patent for Lack of Written Description
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`Plaintiff has asserted three members of the “Friesen Family” of patents. One of those
`patents, U.S. Patent No. 7,533,056 (the “‘056 Patent”), is asserted against every defendant, and is
`argued by TT to be the broadest of its patents.
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`Defendants contend that if the ‘056 Patent claims are as broad as Plaintiff asserts they
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`are, they are invalid under 35 U.S.C. § 112 for lack of written description, as those claims, issued
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`in 2009, bear little resemblance to the supporting disclosure initially filed ten years earlier, in
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`1999. If the court agrees, the claims of the ‘056 Patent will be invalid.
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`If the court, on the other hand, construes the claims of the ‘056 Patent in a manner that is
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`consistent with what is disclosed in the written description, many accused products will clearly
`not infringe and will drop out of the case. Again, regardless of which way the Court rules, the
`case will be streamlined enormously, and the burden on the Court and the parties greatly
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`reduced.
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`Whether the claims of a patent lack an adequate written description can be determined
`largely from the four corners of the specification. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598
`F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (holding that the written description requirement of
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`Section 112 requires that the “disclosure of the application relied upon reasonably conveys to
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`those skilled in the art that the inventor had possession of the claimed subject matter as of the
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`filing date”) (citations omitted). Since this issue may be resolved by reference to intrinsic
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`evidence, it would be useful to resolve it early. Thus, with little discovery directed only to the
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`issue of written description and some motion practice, a key patent asserted against every
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`defendant could be disposed of at the outset of the case, narrowing the remaining issues in the
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`case.
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`C.
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`Priority between the Brumfield and Friesen Patent Families
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`Plaintiff has asserted at least one member of the Brumfield Family and one member of
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`the Friesen Family against each defendant. The Friesen Family was not originally owned by TT,
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`but was later acquired by TT. These two families of patents involve technologies related to user
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`interfaces for electronic trading of commodities. More importantly, TT contends that both
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`unrelated families cover the same trading interface. Because TT contends that both unrelated
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`families cover the same alleged invention, one of the patent families likely constitutes
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`invalidating prior art against the other family of patents. To date, TT has not taken a position on
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`which patent family has priority. A determination on priority will likely determine which family
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`invalidates the other. Resolving this issue early, again either by requiring TT to make an election
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`or the Court determining priority, could potentially invalidate and eliminate from the case one of
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`the two main patent families at issue, substantially streamlining the case.
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`II.
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`PROCEDURES FOR STREAMLINING CASE MANAGEMENT
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`Defendants also propose the following procedures to simplify the management of these
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`consolidated cases.
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`A.
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`Pleadings Deadlines
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`Based on the Second Amended Complaints asserted against settling defendants
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`Cunningham and TradeHelm, it is already apparent that TT intends to add additional patents.
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`Defendants respectfully submit that TT should be given a firm deadline for amending the
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`complaint in each case in which it intends to add additional patents or otherwise change its
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`allegations.1 These cases were filed well over a year ago and the pleadings should reach closure
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`in each case.
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`B.
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`Initial Disclosures
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`Once the pleadings phase has closed, disclosures under Federal Rule of Civil Procedure
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`26 and any local rules other than the Local Patent Rules should be made by each party. In
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`addition, Plaintiff should be required to submit complete preliminary infringement contentions as
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`required by the Local Patent Rules, but no further Local Patent Rules deadlines (such as
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`invalidity disclosures) should proceed while the parties and Court address the issues above to
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`reduce the number of claims and patents and issues in these consolidated cases. This will
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`conserve resources that would otherwise be spent on costly broad discovery, and will focus the
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`parties on issues likely to eliminate entire patents and/or patent families.
`C.
`Selection of Claims
`
`A procedure for streamlining complex patent cases was recently approved by the Federal
`Circuit in In re Katz Interactive Call Processing Patent Litigation, __ F.3d __, 2011 WL
`607381, at *3-4 (Fed. Cir. Feb. 18, 2011) (Exhibit 2). There, the patentee was required to select
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`a certain number of claims (far fewer than all claims of all asserted patents) on which the
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`patentee wished to proceed in the litigation. Defendants propose that such a procedure should be
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`used streamline the management of this complex case.
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`TT should be required to select the claims that it intends to assert against each group of
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`related corporate entities (“defendant group”). TT should be required to select, at most, 30
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`claims in its preliminary infringement contentions for each defendant group across all patents,
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`1 CQG will file, pursuant to Fed. R. Civ. P. 15(a), for leave to amend its answer to assert
`counterclaims seeking declaratory judgments of non-infringement and invalidity of the ’999,
`’056, ’411 and ’424 Patents. These declaratory judgment counterclaims are consistent with those
`asserted by other defendants in these consolidated cases and TT has been on notice of such
`counterclaims for more than 6 months, thus, this amendment will not result in any undue
`prejudice to TT. Should TT seek to amend its Amended Complaint against CQG to assert
`additional patents, CQG reserves the right to further respond at the appropriate time.
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`with a total of no more than 50 claims across all defendants. After discovery, for each defendant
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`group, TT should be required to narrow its selected claims to three (3) per patent. By making
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`such requirements, millions of dollars in unnecessary discovery could be avoided by narrowing
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`the number of claims in these cases. This will reduce the cost of at least claim construction
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`proceedings, infringement-related discovery, and invalidity-related discovery.
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`Dated: May 3, 2011
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`Dated: May 3, 2011
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`Respectfully submitted,
`
`s/ Andrew Johnstone
`By:
`George C. Lombardi (glombardi@winston.com)
`Andrew M. Johnstone (ajohnstone@winston.com)
`Winston & Strawn LLP
`35 West Wacker Drive
`Chicago, Illinois 60601
`(312) 558-5600
`
`Gary A. Rosen (grosen@logarpc.com)
`Law Offices of Gary A. Rosen, P.C.
`1831 Chestnut Street, Seventh Floor
`Philadelphia, PA 19103
`(215) 972-0600
`
`Attorneys for Defendants BGC Partners, Inc., Cantor
`Fitzgerald, L.P., BGC Holdings, L.P., and BGC
`Partners, L.P.
`
`By: /s/ Nina Y. Wang
`Nina Y. Wang (pro hac vice)
`nwang@faegre.com
`Jared B. Briant (pro hac vice)
`jbriant@faegre.com
`Faegre & Benson, LLP
`1700 Lincoln Street, Suite 3200
`Denver, CO 80203
`Tel: (303) 607-3500
`Fax: (303) 607-3600
`
`Kara Eve Foster Cenar
`kara.cenar@bryancave.com
`Bryan Cave LLP
`161 North Clark Street, Suite 4300
`Chicago, IL 60601-3315
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`-6-
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`A 5326
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`Case: 1:10-cv-00715 Document #: 176 Filed: 05/03/11 Page 7 of 8 PageID #:4926
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`Dated: May 3, 2011
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`Dated: May 3, 2011
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`Dated: May 3, 2011
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`Tel: (312) 602-5019
`Fax: (312) 698-7419
`
`Attorneys for Defendants CQG, Inc. and CQGT,
`LLC
`
`By: /s/ Deanna Keysor
`Robert W. Unikel
`Deanna Keysor
`Kaye Scholer LLP
`Three First National Plaza
`70 West Madison Street
`Suite 4100
`Chicago, Illinois 60602
`robert.unikel@kayescholer.com
`deanna.keysor@kayescholer.com
`Tel: (312) 583-2300
`
`Attorneys for Defendants Open E Cry, LLC and
`optionsXpress Holdings, Inc.
`
`By: /s/ Mircea A. Tipescu
`Ralph J. Gabric (Bar Reg. No. 6198485)
`Mircea A. Tipescu (Bar Reg. No. 6276053)
`BRINKS HOFER GILSON & LIONE
`NBC Tower–Suite 3600
`455 North Cityfront Plaza Drive
`Chicago, Illinois 60611-5599
`Tel: (312) 321-4200
`Fax: (312) 321-4299
`
`Attorneys for Defendants Stellar Trading Systems,
`Ltd., and Stellar Trading Systems, Inc.
`
`By: /s/ Michael B. Levin
`Steven P. Mandell (ARDC #6183729)
`Sharon R. Albrecht (ARDC #6288927)
`MANDELL MENKES LLC
`333 West Wacker Drive, Ste. 300
`Chicago, IL 60606
`Tel: (312) 251-1000
`
`Michael B. Levin
`Michael D.K. Nguyen (pro hac vice)
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`-7-
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`A 5327
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`Dated: May 3, 2011
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`Wilson Sonsini Goodrich & Rosati, PC
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
`Fax: (650) 493-6811
`
`Natalie J. Morgan
`Wilson Sonsini Goodrich & Rosati, PC
`12235 El Camino Real, Suite 200
`San Diego, CA 92130
`Tel: (858) 350-2300
`Fax: (858) 350-2399
`
`Attorneys for Defendants thinkorswim Group, Inc.,
`TD AMERITRADE, Inc., TD AMERITRADE
`Holding Corp., IBG, LLC, Interactive Brokers
`Group, Inc., IBG Holdings LLC, and Interactive
`Brokers LLC
`
`By: /s/ Lora A. Moffatt
`Lora A. Moffatt
`Anthony Ullman
`SALANS
`Rockefeller Center
`620 Fifth Avenue
`New York, NY 10020-2457
`Tel: 212-632-5500
`Fax: 212-632-5555
`
`Philippe Bennett
`Bruce Rose
`ALSTON & BIRD LLP
`90 Park Avenue
`New York, NY 10016
`Tel: 212-210-9400
`Fax: 212-210-9444
`
`Brian W. Norkett
`BULLARO & CARTON PC
`200 North LaSalle Street
`Suite 2500
`Chicago, IL 60601
`Tel: 312-831-1000
`Fax: 312-831-0647
`
`Attorneys for FuturePath Trading, LLC, GL
`Trade Americas, Inc., SunGard Data Systems,
`Inc. and SunGard Investment Ventures LLC
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`-8-
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