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Trading Technologies International, Inc v. Bcg Partners

July 31, 2012

TRADING TECHNOLOGIES INTERNATIONAL, INC.,
PLAINTIFF,
v.
BCG PARTNERS, INC.,
DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

In its Order of February 9, 2012, this Court granted Trading Technologies International, Inc.'s (hereafter "TT's") motion for summary judgment with respect to the '056 Patent; granted the moving Defendants' motion for summary judgment that under Trading Technologies, International, Inc. v. eSpeed, Inc., 595 F.3d 1340 (Fed. Cir. 2010), the '411 Patent's claims are invalid to the extent that they cover price axes that move automatically or through automatic re-centering; denied TT's cross-motion that the '411 Patent's claims meet the written description requirement; and granted Defendants Open E Cry, LLC and optionsXpress Holdings, Inc.'s motion for summary judgment regarding prosecution history estoppel with respect to the first set of Brumfield family patents and denied the motion as moot with respect to the second set of Brumfield family patents. See Trading Technologies Intern., Inc. v. BCG Partners, Inc., Nos. 10 C 715, 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, -F. Supp. 2d-, 2012 WL 434674, *2 (N.D. Ill. Feb. 9, 2012) (Kendall, J.). TT now moves this Court to clarify certain aspects of its Order with respect to the '411 Patent and to reconsider its ruling with respect to the '055 Patent. TT also moves the Court to enter a final judgment of invalidity of all asserted claims of the '411 Patent, the '768 Patent, and the '374 Patent and to dismiss the Defendants' remaining defenses and counterclaims relating to those patents without prejudice, and to certify the case for appeal to the Federal Circuit pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth below, the Court denies TT's Motion for Clarification and Reconsideration. The Court grants TT's Motion for a Rule 54(b) Certification and certifies the February 9, 2012 Order as a final judgment for the purposes of taking an interlocutory appeal under Rule 54(b) finding that there is no just reason to delay an appeal.

I. Clarification and Reconsideration

The material undisputed facts of this case are contained in the Memorandum Opinion and Order of February 9, 2012. See Trading Technologies Intern., 2012 WL 434674, at *1-*11. The Federal Rules of Civil Procedure do not provide for a motion to clarify or for a motion to reconsider. See Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); see also GHSC Assocs. Ltd. P'ship. v. Wal-Mart Stores, 29 Fed. Appx. 382, 384 (7th Cir. 2002). The Court thus presumes that TT's Motions are brought as motions to alter or amend pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) ("...it is the substance, rather than the form, of a post-judgment motion that determines the rule under which it should be analyzed."). A Rule 59(e) motion must be brought no later than 28 days after the entry of judgment. See Fed. R. Civ. P. Rule 59(e). The Court entered judgment in this case on February 9, 2012, and the Plaintiff brought its Motion to Clarify and for Reconsideration on March 8, 2012, exactly 28 days after the entry of judgment and in time for the Court to construe the instant Motion as arising under Rule 59(e).

Under Federal Rule of Civil Procedure 59(e) a district court may entertain "[a] motion to alter or amend a judgment." Fed. R. Civ. P. 59(e). Motions to reconsider should be granted only in rare circumstances. See Bank of Waunakee v. Rochseter Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)) (". . .the motion to reconsider should be equally rare."). A party moving for reconsideration bears a heavy burden and its motion must be supported by a showing of extraordinary circumstances. See Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). A motion for reconsideration is not an appropriate vehicle for relitigating arguments that the court previously rejected or for arguing issues that could have been raised during the consideration of the motion under reconsideration. See Id. Motions for reconsideration are utilized for a very limited purpose: to correct manifest errors of law or fact or to present newly discovered evidence. See Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (quoting Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665-666 (N.D. Ill. 1982), aff'd and adopted in relevant part, 736 F.2d 388, 393 (7th Cir. 1984)).

A district court reviews its prior judgment under Rule 59(e) to determine whether "there exists a manifest error of law or fact so as to enable the court to correct its own errors and thus avoid unnecessary appellate procedures." Divane v. Krull Elec. Co., Inc., 194 F.3d 845, 847 (7th Cir. 1999) (citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996)); see also Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). It is well-settled that a motion to reconsider is not a proper vehicle to advance arguments or legal theories that could and should have been made before the district court entered judgment or to present evidence that was available earlier. See Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)); Anderson v. Flexel, Inc., 47 F.3d 243, 247-48 (7th Cir. 1995); King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994). Instead, a Rule 59(e) motion must establish either a clear manifest error of law or fact or must present newly discovered evidence. See LB Credit Corp., 49 F.3d at 1267 (quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). A manifest error of law is the "disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). The decision to grant a Rule 59(e) motion lies in the sound discretion of the district court, and its ruling is reviewed deferentially and will only be disturbed upon a showing that the court abused its discretion. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996); Billups v. Methodist Hosp., 922 F.2d 1300, 1305 (7th Cir. 1991). TT seeks clarification of four statements from this Court's prior Order. In particular,

TT states that the following statements are ambiguous and in need of clarification:

[U]nder the eSpeed Decision, the '411 patent['s] claims are invalid to the extent they cover price axes that move automatically or through automatic re-centering. See Trading Technologies Intern., 2012 WL 434674, at *2 and *19.

[T]he '411 patent's claims are invalid to the extent they claim price axes that move automatically. See Trading Technologies Intern., 2012 WL 434674, at *9 n.9.

[T]o the extent that '411 patent claims seek to cover price axes that move automatically or re-center automatically, rather than static price axes that require manual re-centering, they are invalid and the Court grants the moving defendants' motion for summary judgment and denies TT's cross-motion. See Trading Technologies Intern., 2012 WL 434674, at *16.

[T]he '411 patent's claims are invalid under § 112 to the extent they claim price axes that move automatically. See Trading Technologies Intern., 2012 WL 434674, at *16 n.13.

TT argues that "a product with 'automatic' re-centering can still meet the 'static' limitation so long as it has a 'static' mode." It seeks clarification of these statements to provide that the patent claims are invalid to the extent that they cover price axes that are not "static"--which TT asserts includes automatic re-centering. The statements identified by TT are not ambiguous and require no clarification by this Court. TT is in effect seeking to have this Court render an advisory opinion on a non-infringement issue that was not previously before the Court on summary judgment. Furthermore, the Court held that the claims in the patent were invalid under the prior decisions in the eSpeed case, which are entirely consistent with the Court's Order and these four statements in particular.

TT is essentially asking the Court to decide a non-infringement issue, something it previously explicitly disclaimed it was not doing on summary judgment. See TT's Opposition to Defendants' Motion for Summary Judgment (Doc. 395, pg. 5 n. 6) ("While not relevant to the present motion, some Defendants mischaracterize the scope of 'static' by arguing that any automatic movement takes the product outside the scope of the claims.") (emphasis supplied). In the present Motion, TT makes the same concession, stating that "the meaning of the construction was not at issue in the motion." (emphasis supplied). Thus, TT is now asking the Court to clarify a non-infringement issue that it previously claimed was not before the Court. TT is essentially asking the Court to decide whether an accused "product meets the 'static' limitation by providing a mode or condition in which the price levels do not move unless moved manually (i.e., a condition or mode in which there is no possibility of 'automatic movement'), even if that product also has 'automatic' re-centering in a different non-infringing mode." TT therefore incorrectly assumes that the Court previously decided issues of non-infringement as part of its prior Order. It did not. See Trading Technologies Intern., 2012 WL 434674, at *1-*2. TT is therefore in essence seeking an advisory opinion from this Court in the guise of a Motion to Clarify, asking the Court to hold that a product with automatic re-centering can still meet the "static" limitation. This Court does not sit to render advisory opinions-that is beyond its constitutional authority to decide actual cases and controversies. See U.S. Const. art. III, § 2; Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)) ("[A] federal court['s]. . . judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.") (internal citations and quotations omitted); accord Wisconsin's Environmental Decade, Inc. v. State Bar of Wisconsin, 747 F.2d 407, 410 (7th Cir. 1984) (citing United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947)).

Furthermore, both Judge Moran and the Federal Circuit clearly rejected the argument that TT is now advancing in its Motion to Clarify in their decisions in the eSpeed case. In his initial Markman opinion, Judge Moran concluded that a "static" price axes is one with price levels that do not change position unless a manual re-centering command is received. See Trading Technologies Intern., Inc. v. eSpeed, Inc., No. 04 C 5312, 2006 WL 3147697 (N.D. Ill. Oct. 31, 2006). TT moved for reconsideration of Judge Moran's claim construction, arguing that a price axes with automatic re-centering that has a "mode" or a period between the times when it automatically re-centers during which the price axes remains motionless was "static." Judge Moran disagreed with TT's argument advanced on reconsideration and adhered to his original construction of the term "static." See Trading Technologies Intern., Inc. v. eSpeed, Inc., 507 F. Supp. 2d 854 (N.D. Ill. 2007). On appeal to the Federal Circuit, TT argued that Judge Moran had incorrectly concluded that the possibility of any automatic re-centering of price levels takes a mode of a product outside the scope of the patents' claims. In affirming Judge Moran's claim construction of the term "static," the Federal Circuit rejected this argument, and held that the "static" limitation covers only "software with a manual re-centering feature and without automatic ...


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