United States District Court, N.D. Illinois, Eastern Division
Leif R. Sigmond, Jr. Matthew J. Sampson Michael D. Gannon S. Richard Carden Jennifer M. Kurcz Cole B. Richter McDonnell Boehnen Hulbert & Berghoff LLP Chicago, Illinois Steven F. Borsand Trading Technologies International, Inc. Chicago, IL Attorneys for Plaintiff, TRADING TECHNOLOGIES INTERNATIONAL, INC.
TT'S MOTION FOR JUDGMENT AS A MATTER OF LAW ON INFRINGEMENT
SHARON JOHNSON COLEMAN, District Judge.
Pursuant to Rule 50 of the Federal Rules of Civil Procedure, TT moves for judgment as a matter of law on the issues of literal infringement, inducement of infringement, contributory infringement. Judgement as a matter of law is appropriate under Rule 50 if, in light of the entire record, no reasonable jury could find to the contrary. McMillan v. Stoll, No. 09 C 1622, 2012 WL 707117 at *1 (N.D. Ill. Mar. 5, 2012) (quoting Schandelmeier v. Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir. 2011)). With respect to each of the issues, the evidence conclusively establishes that Plaintiff is entitled to judgement as a matter of law.
1. LITERAL INFRINGEMENT
Plaintiff has asserted that certain of CQG's products literally infringe the claims of the patents in suit. TT has put in evidence with respect to each claim term for the asserted claims, specifically claims 1, 8, 21, 25, 34, and 35 of the 132 patent and claims 1, 7, 16, 17, 22, 26 and 27 of the 304 Patent. See Trial Transcript 687-690 (Thomas). The parties subsequently entered a stipulation that the dependent claims rise and fall with the independent claims. Thus, only claims 1 and 8 of the 132 patent and claims 1 and 27 of the 304 patent need to be discussed. These claims are of two types - method claims and computer-readable medium (CRM) claims.
With respect to these claims, TT's infringement expert, Mr. Thomas, established the correspondence of each of the elements of the claims to the accused devices. See Trial Transcript 687-690 (Thomas). CQG, however, has only disputed the presence of the "static" element of the claims. There is no evidence in the record indicating that the remainder of the elements of the claims are not literally met.
The court has construed the claim terms "static line of prices" and "static display of prices" to mean:
A line comprising prices levels that do not change positions unless a manual recentering or repositioning command is received, meaning if there is movement it must be by manual command as opposed to automatic and where a line of prices corresponds to at least one bid value and one ask value; and
A display of prices comprising prices levels that do not change positions unless a manual recentering or repositioning command is received, meaning if there is movement it must be by manual command as opposed to automatic.
Nothing in the claim construction requires that every price in the line or display be static. Nor does the construction require that the entire price column on the display be static. All that is required for infringement is a mode of operation where there is a range of price levels that do not change position unless as a result of a manual repositioning or manual recentering command.
To literally infringe, the accused product must include each and every element of the claim. See Sloan Valve Co. v. Zurn Indus., Inc., 2013 WL 6132598 at *8 (N.D. Ill. 2013) (citing Mas-Hamilton Grp. v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998)). If a device meets all the elements of the claim in a single operational state, regardless of whether it can be operated in non-infringing states, it still infringes. Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1204 (Fed. Cir. 2010).
TT has accused three CQG products of infringing literally - the CQG Integrated Client (CQGIC) (version Ranges 1-8), the CQG Trader, including WebTrader (CQGT/WT) (all version ranges but 9). Both CQGIC and CQGT/WT include a DOMTrader window having similar functionality, so the products can be dealt with together with respect to the DOMTrader. CQGIC also includes a ChartTrader window that has slightly different functionality, which is dealt with separately. Mr. Thomas, the only expert meeting the definition of a PHOSITA in this case, demonstrated that versions of the DOMTrader (in CQGIC and CQGT/WT) and ChartTrader (in CQGIC) literally infringe the asserted independent and dependent claims of the patents in suit. See Trial Transcript at 625:11-640:6.
With respect to the DOMTrader in CQGIC and CQGT/WT, TT has put forth two theories of literal infringement. Specifically TT has set out evidence with respect to two modes of operation of these products that literally infringe the claims of the patent in suit, both of which occur within the DOMTrader's Responsive Scale setting. The first is the Browse Prices Mode, i.e., the DOMTrader with a price selected. The second is the Browse Prices Mode with the market window disabled.
A. Browse Prices Mode
The evidence is undisputed that the DOMTrader can be operated in the Responsive scale, Browse Prices Mode, wherein it has a display/line of price levels that do not move (absent a manual command), regardless of where the inside market moves. Trial Transcript 625-626 (Thomas), 1547-48 (Shterk), PTX2871 at 10 (Korepanov). Mr. Thomas established the presence of a static display/line of price levels in the DOMTrader in the Responsive scale's Browse Prices Mode [CQGIC Ranges 1, 7 and 8 PTX5605 and CQGT/WT Ranges 1 and 4 PTX 5606]. See Trial Transcript at 683-693 for the claims of the 304 patent and Trial Transcript at 693-697 for the claims of the 132 patent.
CQG appears to have two responses to this showing. First CQG argues that the appearance of a market window in the Browse Prices Mode makes the price column non-static. The facts do not support this conclusion. Even when a market window appears, the prices where the market window does not appear, i.e., the zone of non-market window prices, do not move. As this Court has previously held, there is nothing in the claim construction that requires all prices to be static. Nor is there a requirement that the entire price column be static. All that is required is for there to be a range of price levels that do not move unless in response to a manual command. The DOMTrader meets this limitation regardless of the presence of the market window.
CQG also argues that Shift K (new day shift) takes the DOMTrader outside of the scope of the claims. However, Shift K has no impact on the infringement analysis for two reasons. First, it happens when the exchange is in an out-of-session/closed state during a noninfringing mode of operation. Trial Transcript 651-652 (Thomas), 1923 (Mellor). Thus, Shift K has no impact on the modes of operation that do infringe. Second, it does not constitute automatic movement in any event because it is not completely outside the control of the user. In other words, Shift K is predictable and expected because a user will know when it will happen (unlike unpredictable ...