The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Plaintiff Trading Technologies International, Inc. ("TT") brought a number of separate patent infringement suits relating to computer software used for electronic trading in the futures industry. In anticipation of a similar suit, Rosenthal Collins Group, Inc. ("RCG") brought this declaratory judgment action against TT. Currently pending before the Court are the parties' cross-motions for summary judgment [156, 200]. For the reasons stated below, both motions are denied.
TT's nearly identical patents, U.S. Patent Nos. 6,766,304 ('304 patent) and 6,882,132 ('132 patent), relate to computer software used for electronic trading in the futures industry.*fn1
Specifically, TT patented a "method and system for reducing the time it takes for a trader to place a trade when electronically trading on an exchange, thus increasing the likelihood that the trader will have orders filled at desirable prices and quantities" ('132 Abstract; '304 Abstract). In electronic trading art used prior to TT's 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. 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.
TT's technology changed the electronic futures trading industry by allowing traders to quickly place an order without sacrificing accuracy. In order to do this, the software pairs a "static display of prices" ('132 patent) or "common static price axis" ('304 patent) with "dynamic displays" of "bid" and "ask" columns. The combination allows the trader to track 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 a quicker transmission of the trade to market.
Beginning in 2004, TT brought a number of suits against various defendants alleging infringement of the '132 patent and '304 patent. Those cases that did not settle were consolidated before Judge James Moran for purposes of discovery and claim construction. Judge Moran held a three-day Markman hearing and afterward entered a claim construction order. As relevant to these motions, Judge Moran interpreted "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." Trading Tech., Int'l, Inc. v. eSpeed, Inc., 2006 WL 3147697 at *4 (N.D. Ill. Oct 31, 2006). He also interpreted "static display of prices" as "a display of prices comprising price levels that do not change positions unless a manual re-centering command is received." Id. Essentially, if a price axis moves without input from the user, the product does not infringe.
TT asked Judge Moran to clarify or reconsider his construction of the term "static." As relevant here, TT argued that the term static did not indicate permanent non-movement. Instead TT contended that infringement for any length of time, regardless of whether the accused product or process also had times of non-infringement, covered its claims. Judge Moran declined to reconsider his construction. He recognized the doctrine of part-time infringement, but held that: "Where, however, the claim limitation itself-here a static condition-requires permanency, any movement (outside of manual re-centering or re-positioning) negates one of the specified claim limitations. Therefore, introduction of such movement takes an accused device out of the protection of plaintiff's patents." Trading Tech., Inc. v. eSpeed, Inc., 2007 WL 611258 at *5 (N.D. Ill. Feb. 21, 2007).
A trial subsequently was held in the case against defendants eSpeed, Inc. and Ecco, LLC ("collectively "eSpeed"), and a jury found that three of eSpeed's products infringed TT's patents. TT and eSpeed have filed cross-appeals of various orders issued by Judge Moran. One of the issues that TT raises on appeal is that Judge Moran's constructions of the claim terms "common static price axis" and "static display of prices" are too narrow. Because the claim construction order affects the remaining cases, most of them have been stayed pending the outcome of the eSpeed appeal. However, Judge Moran allowed this case to proceed because TT represented that RCG's Onyx software literally infringes on the patents-in-suit even under his narrow claim construction. This case was subsequently transferred to this Court. The pending cross-motions for summary judgment are fully briefed and ready for resolution.
Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is not appropriate "[i]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). The Court may not make credibility determinations, weigh evidence, or decide which inferences to draw from the facts. Id. at 255. Where, as here, the parties file cross motions for summary judgment, each party must still demonstrate that there are no genuine issues of material fact. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 349 (7th Cir. 1983). The Court is not obligated to grant summary judgment for one side. Id. The Court must evaluate each party's motion on its own merits, resolving all factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
There is no genuine issue of material fact regarding how the Onyx software operates. When a user launches the "Ask Bid Volume" window ("ABV") or ABV 2 window and chooses a contract to display, a dynamic price axis appears in the window. On either side of the dynamic price axis are bid and ask columns, representing the current market depth, along with the buy and sell columns that display the users current orders. Also displayed is a quantity column showing the total quantity currently trading at a particular price. The dynamic price axis continually adjusts the displayed prices so that the last traded price is in the center of the column.
If a user positions the cursor within the ABV window, the prices displayed in the price axis remain stationary for the duration of the cursor's presence in the window. However, if the cursor remains inactive for 30 seconds*fn2 while inside the window, then the axis will begin to slowly scroll up or down the screen to bring the last traded price back to center. While the price axis remains stationary, the user may manually adjust the prices on the price axis away from the last traded price by scrolling along ...