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TRADING TECHNOLOGIES INTERNATIONAL, INC. v. eSPEED

United States District Court, N.D. Illinois, Eastern Division


September 23, 2004.

TRADING TECHNOLOGIES INTERNATIONAL, INC., Plaintiff,
v.
eSPEED, INC. Defendant.

The opinion of the court was delivered by: JAMES MORAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

The parties have advised the court that they agree (or virtually agree) on the terms of a protective order, with one significant exception: an attorney who is active for plaintiff in this litigation has also been involved in patent prosecutions for plaintiff in the past. Assuming that attorney, Steven F. Borsand, may be involved in patent prosecutions for plaintiff in the future, a not unreasonable assumption, defendant wants to deny him access to its highly confidential material or bar him for a period of time from prosecuting patents on plaintiff's behalf. We deny that restriction.

Both plaintiff and defendant have cases upon which they can rely. We think, however that the Federal Circuit presented the better argument in In re Sibia Neurosciences, Inc., 1997 U.S.App. LEXIS 31828. Mr. Borsand, so far as we know, is primarily a litigator. He has, in the past, become incidentally involved in patent applications by, for example, participating in interviews at the PTO, where the applicant is seeking to persuade the patent examiner of the strength of its position. He there acts as an advocate, not as a drafter of specifications and claims, and certainly not as one involved in his client's decisions regarding pricing, marketing, product design or the like. We conclude that the risk of inadvertent misuse of confidential material is not great enough to justify the restrictions defendant proposes. And we have no reason to doubt that Mr. Borsand will conscientiously keep in mind and act to uphold his professional obligations.

20040923

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