United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON, District Judge.
CQG, Inc. and CQGT, LLC (collectively "CQG"), moves to strike portions of Trading Technologies, International, Inc.'s ("TT") infringement reports and to preclude TT's reliance on theories, evidence, testimony, and analyses related to those portions . CQG argues that TT's expert reports from Dr. Craig Pirrong and Mr. Christopher Thomas seek to introduce new theories and analyses not found in TT's Final Infringement Contentions. TT responds that some of the information that CQG seeks to have stricken was expressly disclosed in the Final Infringement Contentions, some of it merely supports one of the disclosed infringement contentions, and that CQG is demanding more specificity in the Final Infringement Contentions than is required. For the reasons stated herein, the Court grants in part and denies in part the motion.
Trading Technologies tendered its Amended Final Infringement Contentions with Respect to CQG's Products pursuant to Local Patent Rules 2.2 and 3.1 with Exhibits on November 26, 2013. TT contends that three of CQG's electronic trading products include a component, the DOMTrader Window, that is covered by certain claims of U.S. Patent No. 6, 766, 304 ("the '304 patent") and U.S. Patent No. 6, 772, 132 ("the'132 patent") (collectively "the patents-in-suit"). The DOMTrader is present in CQG's trading products known as CQG Integrated Client (CQGIC), CQG Trader (CQGT), CQG WebTrader (WT), and is also present in certain products, which CQG allowed to be rebranded by other companies. Versions of the accused products containing the DOMTrader can be operated in at least one mode that includes a "common static price axis"/"static display of prices" as construed, or an equivalent in addition to other elements of each claim. Certain versions of the CQGIC product include a component called the ChartTrader window, which TT also claims infringes literally or under the doctrine of equivalents.
As the Federal Circuit Court of Appeals observed, "local patent rules are meant to prevent a shifting sands' approach to claim construction by forcing the parties to crystallize their theories of the case early in litigation.'" O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1364 (Fed. Cir. 2006); Fujitsu Ltd. v. Tellabs Operations, Inc., No. 08 C 3379 & 09 C 4530, 2012 U.S. Dist. LEXIS 101008, *34 (N.D. Ill. July 19, 2012) (Holderman, J.). Local Patent Rule 2.2 provides the parameters for infringement contentions, stating:
A party claiming patent infringement must serve on all parties "Initial Infringement Contentions" containing the following information:
(a) identification each claim of each patent in suit that is allegedly infringed by the opposing party, including for each claim the applicable statutory subsection of 35 U.S.C. § 271;
(b) separately for each asserted claim, identification of each accused apparatus, product, device, process, method, act, or other instrumentality ("Accused Instrumentality") of the opposing party of which the party claiming infringement is aware. Each Accused Instrumentality must be identified by name, if known, or by any product, device, or apparatus which, when used, allegedly results in the practice of the claimed method or process;
(c) a chart identifying specifically where each element of each asserted claim is found within each Accused Instrumentality, including for each element that such party contends is governed by 35 U.S.C. § 112(6), a description of the claimed function of that element and the identity of the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed function;
(d) identification of whether each element of each asserted claim is claimed to be present in the Accused Instrumentality literally or under the doctrine of equivalents. For any claim under the doctrine of equivalents, the Initial Infringement Contentions must include an explanation of each function, way, and result that is equivalent and why any differences are not substantial;
(e) for each claim that is alleged to have been indirectly infringed, an identification of any direct infringement and a description of the acts of the alleged indirect infringer that contribute to or are inducing that direct infringement. If alleged direct infringement is based on joint acts of multiple parties, the role of each such party in the direct infringement must be described;
(f) for any patent that claims priority to an earlier application, the priority date to which each asserted ...