'.
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`·~ .
`
`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 1 of 25 PageiD #:950
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DMSION
`
`Trading Technologies International, Inc.,
`Plaintiff,
`
`vs.
`eSpeed, Inc., eSpeed International, Ltd.,
`Ecco LLC, and Ecco Ware Ltd.,
`Defendants.
`
`Trading Technologies International, Inc:.,
`·
`Plaintiff,
`
`vs.
`Refc:o Group Ltd., LLC, et al.,
`Defendants.
`
`Rosenthal Collins Group, LLC,
`Plaintiff-Counterclaim Defendant,
`vs.
`Trading Technologies International, Inc.,
`Defeodant-Counterclaimant,
`
`Trading Technologies International, Inc.,
`Plaintiff,
`
`vs.
`GL Consultants, Inc. and GL Trade SA,
`Defendants.
`
`Trading Technologies International, Inc.,
`Plaintiff,
`
`vs.
`CQGT, LLC and CQG, Inc.,
`Defendants.
`Trading Technologies International, Inc.,
`Plaintiff,
`
`vs.
`FuturePath Trading, LLC,
`Defendant.
`
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`No. 04 C 5311
`Jud2eMoran
`
`No. 05 C 1079
`Judge Andersen
`
`No. OS C 4088
`Judge Moran
`
`No. 05 C 4120
`Judge Gottschall
`
`No. 05 C 4811
`Judge Moran
`
`No. 05 C 5164
`Judge Shadur
`
`All Cases Assigned to Judge
`Moran For Common Issues
`
`M EMORANDUM OPINION AND ORDE R
`
`Plaintiff Trading Technologies International, Inc. ("TT") brought separate actions
`
`against defendants eSpeed, Inc., ITSEcco Holdings Limited, Ecco LLC, and Ecco Ware
`
`Limited (collectively "eSpeed"); GL Consultants Inc. ("GL"); CGQT, LLC and CQG, Inc.
`
`(coUectively "CQG"); and FuturePath Trading, LLC ("FuturePath"), alleging infringement
`
`Page 1 of 25
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`TRADING TECH EXHIBIT 2057
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`

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`• . ,
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`• •
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 2 of 25 PageID #:951
`
`No. 04 C 5312, et al.
`
`Page 2
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`of U.S. Patent nos. 6,772,132 ('132 patent) and 6,766,304 ('304 patent). In anticipation of a
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`similar suit, Rosenthal Collins Group, Inc. ("RCG") brought a declaratory judgment suit
`
`against TT.1 For the purposes of discovery and claim construction, the cases were assigned to
`
`this court for all common issues. A Markman hearing1 was held, and we now construe the
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`claims in dispute.
`
`BACKGROUND
`
`The two patents-in-suit are nearly identical, and both relate to computer software used
`
`for electronic trading in the futures market. According to plaintiff, the software revolutionized
`
`the futures trading industry, allowing the trader to track the market depth of a commodity
`
`and visualize the changes in the inside market. In electronic trading art used prior to
`
`plaintifrs patented invention, the computer trading screen showed the changes in the inside
`
`market, but a rapidly fluctuating market often caused traders to miss their prices when
`
`entering an order at the exact time the inside market was moving. According to plaintifrs
`
`patents, "[i)f a trader intends to enter an order at a particular price, but misses the price
`
`because the market prices moved before he could enter the order, he may lose hundreds,
`
`thousands, even millions of dollars" ('132, 2:57-61; '304, 2:61-65). Prior art also lacked speed,
`
`requiring the trader to enter multiple elements of his or her trade before the order could be
`
`sent to the market. 3 Plaintifrs technology changed the electronic futures trading industry by
`
`1For the purposes of this motion, we will refer to all defendants and RCG, collectively, as
`"defendants."
`
`'Markman v. Westview Instruments. Inc., 52 F.3d 967 (Fed.Cir.l995), aff'd, 517 U.S. 370 (1996).
`
`3Defendants emphatically argue that plaiotifrs technology is not novel and had been anticipated by
`prior art, thus suggesting that plaintifrs examples of prior art do not represent the entire field of prior art.
`We make no decision with regard to anticipation or invalidity at this stage in the construction. We only refer
`to plaintifrs examples of prior art to set up the major disputes regarding claim construction. Invalidity
`analysis is saved for another time.
`
`Page 2 of 25
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`

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`. ,
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`..
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 3 of 25 PageID #:952
`
`No. 04 C 5312, et al.
`
`Page 3
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`allowing traders to quickly place an order without sacrificing accuracy. In order to do this,
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`the software pairs a "static display of prices" ('132) or "common static price axis" ('304) with
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`"dynamic displays" of "bid" and "ask" columns. The combination allows the trader to track
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`the changing market prices without the prices shifting from under him or her. The user then
`
`places a bid or ask order in the "order entry region" through a "single action of a user input
`
`device," which allows for quicker transmission of the trade to the market.
`
`Along with a number of additional claim terms, the terms indicated above constitute
`
`the primary disputes in claim construction. Claim 1 of each patent is a representative claim,
`
`and contains the major disputed terms for construction:
`
`'132 Claim 1: A method of placing a trade order for a commodity on an
`electronic exchange having an inside market with a highest bid price and a
`lowest ask price, using a graphical user interface and a user input device, said
`method comprising:
`
`[1) setting a preset parameter for the trade order
`[2) displaying market depth of the commodity, through a dynamic
`display of a plurality of bids and a plurality of asks in the market
`for the commodity, including at least a portion of the bid and ask
`quantities ofthe commodity, the dynamic display being aligned with
`a static display of prices corresponding thereto, wherein the static
`display of prices does not move in response to a change in the inside
`market;
`[3) displaying an order entry region aligned with the static display
`prices comprising a plurality of areas for receiving commands from
`the user input devices to send trade orders, each area corresponding
`to a price ofthe static display of prices; and
`[4) selecting a particular area in the order entry region through a
`single action of the user input device with a pointer of the user input
`device positioned over the particular area to set a plurality of
`additional parameters for the trade order and send the trade order
`to the electronic exchange.
`
`'304 Claim 1: A method for displaying market information relating to and
`facilitating trading of a commodity being traded in an electronic exchange
`having an inside market with a highest bid price and a lowest ask price on a
`graphical user interface, the method comprising:
`
`Page 3 of 25
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`

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`..
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`'•
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 4 of 25 PageID #:953
`
`No. 04 C 5312, et al.
`
`Page 4
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`[1) dynamically displaying a first indicator in one of a plurality of
`locations in a bid display region, each location in the bid display
`region corresponding to a price level along a common static price
`axis, the first indicator representing quantity associated with at least
`one order to buy the commodity at the highest bid price currently
`available in the market;
`[2) dynamically displaying a second indicator in one of a plurality
`oflocations in an ask display region, each location in the ask display
`region corresponding to a price level along the common static price
`axis, the second indicator representing quantity associated with at
`least one order to sell the commodity at the lowest ask price
`currently available in the market;
`[3) displaying the bid and ask display regions in relation to fixed
`price levels positioned along the common static price axis such that
`when the inside market changes, the price levels along the common
`static price axis do not move and at least one of the first and second
`indicators moves in the bid or ask display regions relative to the
`common static price axis;
`[4) displaying an order entry region comprising a plurality of
`locations for receiving commands to send trade orders, each location
`corresponding to a price level along the common static price axis;
`and
`[5] in response to a selection of a particular location of the order
`entry region by a single action of a user input device, setting a
`plurality of parameters for a trade order relating to the commodity
`and sending the trade order to the electronic exchange.
`
`DISCUSSION
`
`Both parties agree that our claim construction should be guided by the Federal
`
`Circuit's en bane decision in Phillips v. A WH Corn., 415 F.3d 1303 (Fed.Cir.2005). In Phillips,
`
`the court addressed "the principal question ... [of] the extent to which we should resort to and
`
`rely on a patent's specification in seeking to ascertain the proper scope of its claims." I d. at
`
`1312. The Phillips court essentially held that while "[i)t is a 'bedrock principle' of patent law
`
`that 'the claims of a patent define the invention to which the patentee is entitled the right to
`
`exclude,' (id. at 1312; Nystrom v. Trex Co .. Inc., 424 F.3d 1136, 1142 (Fed.Cir.2005)), ... [t]he
`
`construction that stays true to the claim language and most naturally aligns with the patent's
`
`Page 4 of 25
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`

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`. ,
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`..
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 5 of 25 PageID #:954
`
`No. 04 C 5312, et al.
`
`Page 5
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`description ofthe invention wiU be, in the end, the correct construction." Phillips, 415 F.3d at
`
`1316.
`
`We take the following from Phillips. In construing the claims of a patent we should
`
`look first to the claims themselves, which "provide substantial guidance as to the meaning of
`
`particular claim terms." I d., at 1314. As we determine the meaning ofsuch claims, giving them
`
`the "ordinary and customary meaning ... [they] would have to a person of ordinary skill in the
`
`art in question at the time ofthe invention," we construe them in light of the "same resources
`
`as would [a person of ordinary skill in the art], viz., the patent specification and the
`
`prosecution history." I d., at 1312-13. See also C.R.Bard. Inc. v. United States Surgical Corp.,
`
`388 F.3d 858, 862 (Fed.Cir.2004) ("the intrinsic record is the primary source for determining
`
`claim meaning"). We can also look to the prosecution history to determine whether the
`
`patentee "clearly and unambiguously express(ed] surrender of subject matter during
`
`prosecution." Sorenson v. International Trade Commission, 427 F.3d 1375, 1378
`
`(Fed.Cir.2005). And finally, we can turn to extrinsic evidence- general purpose and technical
`
`dictionaries, and expert testimony, for example- to "shed useful light on the relevant art," but
`
`must consider it only in the context of the intrinsic evidence, including the claim language,
`
`specification, and prosecution history. Phillips, 415 F.3d at 1317-18.
`
`We will address each of the disputed terms in turn.
`
`Static Display of Prices/Common Static Price Axis
`
`The parties dispute the meaning of "static" in "static display of prices" and "common
`
`static price axis." Plaintiff argues that the price axis is static, or unmoving, in relation to a
`
`change in the inside market. Plaintiff further argues that the patents limit the movement of
`
`the price axis in order to increase the likelihood that a trader will not miss his price.
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`Page 5 of 25
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`

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`..
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`..
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 6 of 25 PageID #:955
`
`No. 04 C 5312, et al.
`
`Page 6
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`Therefore, plaintiff encourages us to adopt a construction of"price levels that do not normally
`
`change positions when new market data reflecting a change in the inside market is received."
`
`Defendants urge adoption of their various constructions, all of which limit movement of the
`
`price axis to a manual re-centering or re-positioning command. At the center of this fight is
`
`the question of automatic re-centering- do plaintiff's patents cover automatic re-centering?
`
`Plaintiff answers in the aff'IJ'mative and, not surprisingly, defendants answer in the negative.
`
`Although our preliminary injunction construction aligned with plaintiff's view, such
`
`construction was, simply put, preliminary. Jack Guttman. Inc. v. Kopykake Enterprises, Inc.,
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`302 F.3d 1352, 1361 (Fed.Cir.2002) ("District courts may engage in a rolling claim
`
`construction, in which the court revisits and alters its interpretation ofthe claim terms as its
`
`understanding of the technology evolves"). Today we have a better understanding of the
`
`technology, and all parties have had the opportunity to flesh out their arguments.
`
`We now choose to alter our initial construction, construing "common static price axis"
`
`as "a line comprising price levels that do not change positions unless a manual re-centering
`
`command is received and where the line of prices corresponds to at least one bid value and one
`
`ask value." We construe "static display of prices" similarly, as "a display of prices comprising
`
`price levels that do not change positions unless a manual re-centering command is received."
`
`Defendant eSpeed pointed us to MSN Encarta Dictionary to set forth the ordinary and
`
`customary definition of static: "motionless: not moving or changing, or fixed in position." Our
`
`search of Webster's II New College Dictionary yielded similar results: "Having no motion: at
`
`rest." While we recognize that Phillips teaches us that a dictionary definition should only be
`
`used for context, Phillips also teaches that the "words of a claim 'are generally given their
`
`ordinary and customary meaning,' ... [which is) the meaning that the term would have to a
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`Page 6 of 25
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`

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`..
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`·.
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 7 of 25 PageID #:956
`
`No. 04 C 5312, et al.
`
`Page7
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`person of ordinary skill in the art in question atthe time of the invention." 415 F.3d at 1312-13.
`
`Plaintiff has given us no reason to think that such a person of ordinary skill in the art would
`
`construe "static" as anything other than non-moving at the time of the invention.4
`
`If"static" ordinarily means non-moving, then we cannot see how we can construe it any
`
`other way. The only exception can be the one explicitly stated in the specifications and
`
`prosecution history- movement due to receipt of a manual re-centering command. If we were
`
`to construe the term inclusive of additional unstated exceptions, such as automatic re-
`
`centering, we would not know where to stop. Defendant eSpeed aptly asks, "Why is a price
`
`display which automatically recenters after every two seconds 'static,' but a price display
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`which automatically recenters after every iwe seconds is not? Why is a price display that .
`
`automatically recenters when the inside market exceeds three ticks from the center price is
`
`'static,' but a price display which automatically recenters after every fifth tick is not?"
`
`(eSpeed's post-Markman brief, at 6, n4). Plaintiffs own argument raises the same questions.
`
`Plaintiff notes, "In fact, with eSpeedometer [which contains a slow drift recentering
`
`component,] a price level never suddenly changes position under a trader's cursor causing him
`
`to miss his intended price. This is in contrast to the eSpeed product addressed by the Court
`
`at the PI hearing which provided for an instantaneous automatic recentering when the inside
`
`market moved off the top or bottom ofthe screen. Thus, eSpeedometer is more 'static' than
`
`eSpeed 's previous product because it provides the trader with virtually a 100% guarantee that
`
`4We do find it interesting that in all of plaintiff's filed exhibits with regard to claim construction,
`including two dictionary excerpts, plaintiff has never argued that the ordinary and customary meaning of
`"static" is something other than stationary or non-moving.
`
`Page 7 of 25
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`..
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`·.
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 8 of 25 PageID #:957
`
`No. 04 C 5312, et al.
`
`Page 8
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`he will not miss his intended price" (ptrs post-Markman brief, at 8-9, n6).5 How can any
`
`movement be "more static"? What is static enough to fall within the ambit of plaintifrs static
`
`construction? Because we cannot say, we must construe the term "static" in its ordinary
`
`meaning, non-moving, and allow for the only exception plainly stated in the written
`
`description: manual re-centering.
`
`We find unpersuasive plaintifrs argument that the patent only increases but does not
`
`guarantee the user's likelihood of accurately selecting his desired price. Plaintifrs patents are
`
`designed to achieve simultaneous goals: speed and accuracy. With regards to accuracy, the
`
`patent specification states, "The 'Mercury' display and trading method of the present
`
`invention ensure fast and accurate execution of trades by displaying market depth on a vertical
`
`or horizontal place, which fluctuates logically up or down, left or right across the plane as the
`
`market price fluctuates" ('132, 3:5-9; '304, 3:9-13) (emphasis added). Like defendants, we
`
`read such language as a guarantee. It is only with regard to speed that the patents cannot
`
`guarantee accuracy- it is impossible to know how quickly a trader will process a desired price,
`
`move his hand to the user input device, and select the bid or ask region. It is with that in mind
`
`that the patent states "[t]he faster a trader can trade, the less likely it will be that he will miss
`
`his price and the more likely he will make money" ('132, 2:60-62; '304, 2:65-67). We find that
`
`the purpose of the patents' invention would be frustrated by the inclusion of any movement
`
`uncontrolled by the user. See Curtiss-Wright Flow Control Com. v. Velan, Inc., 438 F.3d
`
`1374, 1379-81 (Fed.Cir.2006) (limiting the claim term "adjustable" to the patent's consistent
`
`description that adjustment occurs during operation ofthe de-header system, in part because
`
`5It is possible that eSpeed's (or any other defendant's) product will be considered "static" under the
`doctrine of equivalents, even under the current construction. Such analysis, however, is reserved for a future
`date.
`
`Page 8 of 25
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`

`
`•,
`
`•'
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 9 of 25 PageID #:958
`
`No. 04 C 5312, et al.
`
`Page 9
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`"[a)ny construction to the contrary is not consistent with the overall context of this invention
`
`and this field of art as described in the specification"). Thus, we are further convinced of our
`
`construction.
`
`We take time to note that the construction of "common static price axis" includes the
`
`phrase, "where the line of prices corresponds to at least one bid value and one ask value." We
`
`do so to clarify that with regard to the "line of prices," orientation of the axis is irrelevant -
`
`it can be horizontal, vertical or angled, for example. We find that use of the claim language
`
`"common," "corresponding to" and "aligned" are all used as synonyms for "in relationship
`
`with." See Id., 438 F.3d at 1380 ("this court has acknowledged that two claims with different
`
`terminology can define the exact same subject matter"). The specification's language states
`
`that "Mercury displays market depth in a logical, vertical fashion or horizontally or at some
`
`other convenient angle or configuration" ('304, 7:42-45, '132, 7:22-25). That market depth,
`
`which includes the best bid and the best ask, can be displayed on an angle gives further
`
`support to plaintiff's contention that "common" connotes no more than a relationship between
`
`the price axis and the bid and ask display regions.
`
`We also note our use of the term "price levels" in the construction of both "common
`
`static price axis" and "static display of prices." While recognizing that the '132 patent does
`
`not use the term "price level" in the claims, as compared to the '304 patent, we find that the
`
`intrinsic evidence compels us to adopt such language in both constructions. We re-assert our
`
`preliminary injunction analysis regarding this issue: "the real issue is what 'static display of
`
`prices' means, and we understand that phrase to include price levels, which is where the prices
`
`are located and displayed. In other words, the display of prices is a region in which prices,
`
`represented by numbers, are shown." Tradine Technologies Int'l. Inc. v. eSpeed, Inc., 370
`
`Page 9 of 25
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`

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`•,
`
`•'
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 10 of 25 PageID #:959
`
`No. 04 C 5312, et al.
`
`Page 10
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`F.Supp.2d 691, 699 (N.D.Ill.2005) ("Trading Technologies I"). We reject defendants'
`
`contention that "price levels" are synonymous with prices or representation of prices. The
`
`written descriptions of both patents consistently refer to "price rows" and "price levels." For
`
`example, "The market depth display shows the trader the interest the market has in a given
`
`commodity at different price levels" ('304, 6:17-19, '132, 5:50-52). "The status of each order
`
`is displayed in the price row where it was entered" ('304, 8:23-24, '132, 7:56-57). "Thus, a
`
`right click in the AskQ column in the 87 price row will send a sell order to market at a price
`
`of87 and a quantity of150" ('304, 10:46-48, '132 10:8-10). "A left click would enter an order
`
`with a price corresponding to the price row clicked ... " ('304, 11:21-22, '132, 10:50-51). 6 Found
`
`in the preferred embodiment, it is clear that both patents intended to showcase a "price level"
`
`that was broader than simply price. Pfizer. Inc. v. Teva Pharmaceuticals. USA. Inc., 429 F.3d
`
`1364, 1374 (Fed.Cir.2005) ("A claim construction that excludes a preferred embodiment ... is
`
`'rarely, if ever, correct"'). Thus, we define "price level" as "a level on which a designated
`
`price or price representation resides."
`
`Dynamic Displayffiynamically Displaying
`
`The parties dispute the meaning ofthe term "dynamic" in the claim language "dynamic
`
`display" and "dynamically displaying." The defendants argue that "dynamic" requires
`
`movement, up or down the price axis, for example. Plaintiff contends that "dynamic" is
`
`captured by the updating of the bid and ask quantities as new information is received from the
`
`6Defendant eSpeed argues that the use of "price levels" with respect to Figure 2 ("The working bid
`and ask quantity for each price level is also displayed in columns 202 and 205 respectively" ('304,5:27-29,
`'132, 5:23-25}}, wherein 202 and 205 are on the same horizontal row, proves that "price levels" are
`synonymous with "prices." Plaintiff counters by arguing that Figure 2 does contain "price levels" under its
`proposed construction -the trading screen has a level or region on which the price resides that does not
`extend across the entire row, as compared to patents' preferred embodiments. We find plaintiff's argument
`persuasive.
`
`Page 10 of 25
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`

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`..
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`·.
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 11 of 25 PageID #:960
`
`No. 04 C 5312, et al.
`
`Page II
`
`market. Based on our understanding of the record, we construe "dynamic display" to be "[a)
`
`display of a plurality of bids and asks that are updated in response to new market information
`
`such that the bids and asks change positions relative to the static display of prices when the
`
`market changes." Updates based on the changing market data cause the displayed quantities
`
`of bids and asks to appear to move along the static price axis. Similarly, we construe
`
`"dynamically displaying" as "[ujpdating the first (second) indicator in response to new market
`
`information such that the first (second) indicator changes positions relative to the common
`
`static price axis when the market changes."
`
`Defendants argue that plaintiff disclaimed use of the term "update" during the
`
`prosecution of the patents. During that time, patentee's counsel distinguished patentee's
`
`invention from the Silverman et al prior art:
`
`The present invention, as claimed, is patentable over the Silverman et al.
`references. As described above, the present invention includes a dynamic
`display for a plurality of bids and for a plurality of asks in the market for a
`given commodity and a static display of prices corresponding to the plurality of
`bids and asks for the commodity .... While it appears that both the central system
`book and the keystation book of the Silverman et al. references show a plurality
`of bids and asks for a given traded commodity, in contrast to the present
`invention, the references disclose that these pluralities are displayed
`"dynamically" only in the sense that the bids and offers are updated .... There
`is no disclosure that the listing of bids and aks actually move along any axis.
`
`(Petition to Make Special, eSpeed claim construction, exh. F, eS64848-9). Based on this
`
`language, defendants argue that plaintiff cannot now reclaim in construction something
`
`patentee disclaimed during prosecution. They are correct in theory. See SanDisk Corp. v
`
`Memorex Products. Inc., 415 F.3d 1278, 1286 (Fed.Cir.2005) ("The court must always consult
`
`the prosecution history, when offered in evidence, to determine if the inventor surrendered
`
`disputed claim coverage"). We do not think, however, that the patentee disclaimed the use of
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`Page 11 of 25
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`.,
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`•'
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 12 of 25 PageID #:961
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`No. 04 C 5312, et al.
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`Page 12
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`"update" in this case. The Petition to Make Special continues:
`
`Furthermore, unlike the present invention, neither the central system book nor
`the keystation book of the Silverman et al. references includes a static display
`of prices corresponding to a plurality of bids and asks for a traded commodity.
`There being no static display of prices, the references also do not disclose that
`the pluralities of bids and asks are dynamically displayed in alignment with the
`prices corresponding thereto."
`
`(eSpeed claim construction, exh. F, at eS64849). Unlike plaintiff's invention, the Silverman
`
`prior art did not combine the static display of prices with the dynamic display of bids and asks.
`
`Therefore, it only updated the prices. The present invention, by contrast, not only updates the
`
`prices, but because the bid and ask values are shown relative to the static price axis, the user
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`can visually track the movement of the market by the movement ofthe bids and asks along the
`
`price axis. That visual shift, in addition to the updating, is what makes the plaintiff's invention
`
`distinguishable from the Silverman eta/. references.
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`Once we allow use of the term "updating" in construction of the claims, we address
`
`defendants' additional arguments. Defendants point to such language as "[t)he values in the
`
`Bid and Ask columns however, are dynamic; that is, they move up and down (in the vertical
`
`example) to reflect the market depth for the given commodity" (amend. and reply, eSpeed
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`claim construction, exh. E, eS64873). They argue that such language proves that the term
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`"dynamic" must indicate movement specifically. We decline to adopt such language in the
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`construction. Like the specification language, "The 'Mercury' display and trading method of
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`the present invention ensure fast and accurate execution of trade by displaying market depth
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`on a vertical or horizontal plane, which fluctuates logically up or down, left or right across the
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`place as the market price fluctuates," the prosecution history focuses "movement" on the
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`market depth. Such a focus allows that the term "dynamic" alone can refer to updates
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 13 of 25 PageID #:962
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`No. 04 C 5312, et al.
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`Page 13
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`received from the market, and the movement occurs simply because changed bid or ask values
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`correspond to different prices in the static price display. Therefore, we construe "dynamic
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`display" as "[a] display of a plurality of bids and asks that are updated in response to new
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`market information such that the bids and asks change positions relative to the static display
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`of prices when the market changes." We construe "dynamically displaying" as "[u]pdating
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`the first (second) indicator in response to new market information such that the first (second)
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`indicator changes positions relative to the common static price axis when the market changes."
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`We construe "indicator" in its plain and ordinary meaning as "something that indicates."
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`Order Entrv Region
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`Both patents use the term "order entry region" in claim 1. During the preliminary
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`injunction phase we construed the term to mean "an area comprising a plurality of locations
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`where users may enter commands to send trade orders, and that each location corresponds to
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`a price level along the common static price axis." We see no reason to depart from that
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`construction now.
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`Along with the debate over "single action of a user input device" (see below), the
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`parties' dispute centers on whether a pop-up window is covered under plaintiff's patents.
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`While that is clearly a question for another day, it can offer context for our construction
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`analysis. See Wilson Sporting Goods Co. v. Hillerich & Brads by Co., 442 F.3d 1322, 1326-27
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`(Fed.Cir.2006) ("While a trial court should certainly not prejudge the ultimate infringement
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`analysis by construing claims with an aim to include or exclude an accused product or process,
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`knowledge of that product or process provides meaningful context for the first step of the
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`infringement analysis, claim construction").
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`Like plaintiff's patents as a whole, "order entry region" should be viewed from the
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`Page 13 of 25
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 14 of 25 PageID #:963
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`No. 04 C 5312, et al.
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`Page 14
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`perspective of the user, not the computer. With that in mind we accept defendants' argument
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`that "order entry region" is a location within the trading display where a user sends and not
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`simply initiates an order. The patents' written descriptions consistently state that a selection
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`within the order entry region does more than simply initiate an order, it sends or executes the
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`order (see, e.g., '304, 3:9-10; '132, 3:5-6 ("The 'Mercury' display and trading method of the
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`present invention ensure fast and accurate execution of trades .•. "); '304, 3:26-28; '132, 3:22-24
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`(" ... provide the trader with improved efficiency in placing, and thus executing, trade orders
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`for commodities in an electronic exchange"); '304, 10:34-39; '132, 9:63-67 ("A left click on the
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`18 in the BidQ column will send an order to market to buy 171ots ... of the commodity at a price
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`of 89") ). The prosecution history further reveals that patentee originally envisioned claim
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`language that included" [a) method of ... initiating placement of a trade order ofthe commodity
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`through a single action of the user input device with a pointer of the user input device
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`positioned over an area in said dynamic displays of bids and asks" (certified file history for
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`U.S. Patent No. 6,772,132, eSpeed claim construction, exh. C, at eS64874). Over a year later,
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`the patentee changed the focus of that claim, removing the language "initiating placement"
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`and amending it to read, "method comprising ... selecting a particular area in the order entry
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`region through a single action of the user input device with a pointer of the user input device
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`positioned over the particular area to set a plurality of additional parameters for the trade
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`order and send the trade order to the electronic exchange" (id. at eS65203). Thus, from the
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`perspective of the user, selection of an area in the order entry region is the final step in the
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`trader's placement of an order at the market. In other words, the user need not do anything
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`more before the order is entered at the market. If, however, the computer or the exchange had
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`to perform additional steps before the order was actually filled at the exchange, such would
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`Page 14 of 25
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`Case: 1:05-cv-04811 Document #: 105 Filed: 10/31/06 Page 15 of 25 PageID #:964
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`No. 04 C 5312, et al.
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`Page 15
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`still fall within the ambit of "order entry region," as construed herein. 7
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`Single Action of a User Input Device
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`Facing arguments overlapping with the "order entry region" debate, we once again see
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`no need to depart from the construction we adopted during the preliminary injunction phase.
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`Thus, we construe "single action of a user input device" to be "an action by a user within a
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`short period of time that may comprise one or more clicks of a mouse button or other input
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`device." Defendant eSpeed has attempted to resuscitate its argument that "single action" must
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`send a "single computer command to make the selection." Again we reject such a limitation.
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`eSpeed's attempt harkens back to the pop-up window, and focuses the "single action" on the
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`computer, rather than the user. As we have continually noted, however, plaintiff's patents
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`generally