United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, UNITED STATES DISTRICT JUDGE
Trading Technologies International, Inc. (“TT”)
sued Defendants IBG LLC and Interactive Brokers Group LLC
(collectively “IBG”) for infringement of United
States Patent Nos. 6, 766, 304 (the “‘304
Patent”), 6, 772, 132 (the “‘132
Patent”), 7, 676, 411 (the “‘411
Patent”), and 7, 813, 996 (the “'996
Patent”). The Court held a claims construction hearing,
at which time it heard argument on IBG's Motion to Strike
(Dkt. 1126) and the five claim terms in dispute. (Dkt. 1136).
For the reasons stated within, IBG's Motion is granted,
and the Court's construction of these terms is set forth
patents at issue here are related to electronic trading
systems and software. The four patents asserted are from the
same patent family, titled “Click Based Trading with
Intuitive Grid Display of Market Depth.” TT suggests
that its family of patents and the software it developed made
significant improvements on existing trading software by
providing a faster, more efficient means of trading by
incorporating a static price axis and a dynamic display of
bid and ask indicators that move along a static price axis as
market information changes. TT argues that IBG's Trader
Workstation, WebTrader, and BookTrader products and modules
infringe upon their trading software patents.
construction resolves disputed meanings in a patent to
clarify and explain what the claims cover. See Terlep v.
Brinkmann Corp., 418 F.3d 1379, 1382 (Fed. Cir. 2005).
The construction of the claims at issue is a legal
determination to be made by the court. See Id.
(citing Markman v. Westview Instruments, Inc., 52
F.3d 967, 970-71 (Fed. Cir. 1995)). Generally, the terms of a
claim are given the ordinary and customary meaning that the
terms would have to a person of ordinary skill in the art at
the time of the filing date of the patent application.
See Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.
Cir. 2005). When interpreting an asserted claim, the court
looks first to intrinsic evidence: the words of the claims,
the patent specification, and the prosecution history.
See Id. at 1316-18.
claim language is the starting point for claim construction
analysis because it frames and ultimately resolves all issues
of claim interpretation. See Sumitomo Dainippon Pharma
Co., Ltd. v. Emcure Pharmaceuticals Limited, 887 F.3d
1153, 1157-58 (Fed. Cir. 2018); Robotic Vision Sys., Inc.
v. View Eng'g Inc., 189 F.3d 1370, 1375 (Fed. Cir.
1997). In some cases, the “ordinary and
customary” meaning of the claim language may be readily
apparent, even to lay judges, and the court applies the
widely accepted meaning of the commonly understood words.
See Phillips, 415 F.3d at 1314. In such cases, a
general-purpose dictionary may be helpful. See Id.
In many cases, however, the court must proceed beyond the
bare language of the claims and examine the patent
specification. See Id. at 1314-15. “The person
of ordinary skill in the art is deemed to read the claim term
not only in the context of the particular claim in which the
disputed term appears, but in the context of the entire
patent, including the specification.” Id. at
1313. The specification is usually dispositive;
“'it is the single best guide to the meaning of a
disputed term.'” Id. at 1315 (quoting
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996)). In the specification, the patentee
provides a written description of the invention that allows a
person of ordinary skill in the art to make and use the
invention. See id. at 1323. At times, the patentee
uses the specification to “set forth an explicit
definition for a claim term that could differ in scope from
that which would be afforded by its ordinary meaning.”
Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342
(Fed. Cir. 2001).
court may also look to the patent's prosecution history.
See Phillips, 415 F.3d at 1317. While the
prosecution history often lacks the clarity of and is less
useful than the specification, it may inform the court of the
meaning of a claim term by illustrating how the inventor
understood the invention as well as how the inventor may have
limited the scope of the invention. See Id. The
prosecution history is generally relevant if a particular
interpretation of the claim was considered and specifically
disclaimed during the prosecution of the patent. See
Schumer v. Lab. Comp. Sys., 308 F.3d 1304, 1313 (Fed.
a court may also consult “extrinsic evidence, ”
such as dictionaries, treatises, and expert testimony, to
“shed useful light on the relevant art.”
Phillips, 415 F.3d at 1317-18. Generally, extrinsic
evidence is “less reliable” than intrinsic
evidence and is “unlikely to result in a reliable
interpretation of patent claim scope unless considered in the
context of the intrinsic evidence.” Id. at
1318-19. With respect to the use of dictionaries, technical
or general, a court may consult such evidence “so long
as the dictionary definition does not contradict any
definition found in or ascertained by a reading of the patent
documents.” Id. at 1322-23.
IBG's Motion to Strike
addressing the merits of the claim construction, the Court
first turns to IBG's Motion to Strike the Declaration of
Larry S. Nixon, TT's expert. (Dkt. 1124). IBG claims that
Nixon's declaration is improper because Nixon does not
have technical skill in the art, it contains improper legal
argument, and it contains factual and legal fallacies. (Dkt.
1126). The “'[a]dmission of expert testimony is
within the discretion of the trial court.'”
Sundance, Inc. v. DeMonte Fabricationg Ltd., 550
F.3d 1356, 1360 (Fed. Cir. 2008) (quoting Acoustical
Design, Inc. v. Control Elecs. Co., 932 F.2d 939, 942
(Fed. Cir. 1991). At the claim construction stage, the
primary consideration for the Court is whether additional
expert testimony is helpful in interpreting the meaning of
the contested claim language. See e.g., Senior
Indus., Inc. v. Thomas & Betts Corp., 2001
WL 1163680, at *3 (N.D. Ill. Sept. 8, 2001), aff'd 79
Fed.Appx. 427 (Fed. Cir. 2003) (citing Markman, 52
F.3d at 983).
TT offers Nixon as a patent office procedure expert. (Dkt.
1157, 130:21-23). In his declaration, Nixon opines on the
prosecution histories of the patents at issue, USPTO patent
application and prosecution procedures, and the definition of
certain terms based upon prior litigation and the intrinsic
record. To the extent that Nixon offers his own
interpretation and legal conclusion of prior eSpeed
litigation (Dkt. 1075-2, Part III), his declaration is
stricken as improper. See e.g., The Medicines Co. v.
Mylan Inc., 2014 WL 1758135, at *6 (N.D. Ill. May 2,
2014) (“She may not, however, give general testimony
interpreting patent law.”). The remainder of
Nixon's declaration provides an in-depth summary of the
USPTO's procedures and the file history of these specific
patents. Though there is nothing inherently improper
regarding an expert's testimony covering such topics,
there is likewise nothing inherently helpful about it either.
The Court is familiar with the relevant patent law procedures
and is more than capable of understanding the patents'
file histories. As such, Nixon's testimony is not
necessary to the Court's core mission at this stage-
claim construction-and Nixon's testimony is stricken as
not relevant and cumulative. See Markman, 52 F.3d at
“static price axis” (‘996 Patent; claim
TT's Proposed Construction
"a line comprising price levels that do
not change positions unless a manual
re-centering command is received"
"a reference line comprising price levels
that do not change positions unless a
re-centering or re- positioning command is
respect to the term “static, ” the parties
devoted significant time in their briefs and at oral argument
to the meaning, and controlling nature, of previous related
litigation-Trading Techs. Int'l, Inc. v. eSpeed,
Inc., 595 F.3d 1340 (Fed. Cir. 2010) and Trading
Techs. Int'l, Inc. v. Open E Cry, LLC, 728 F.3d
1309, 1312 (Fed. Cir. 2013). eSpeed dealt with the
‘132 and ‘304 Patents and, potentially relevant
here, the construction of “static” in those
patents. There, the Federal Circuit affirmed the district
court's construction of “static” as a line or
display of price levels “that do not change positions
unless a manual re-centering command is received.”
eSpeed, 595 F.3d at 1352 (citations omitted).
Open E Cry again concerned the term “static,
” but this time in the context of the ‘055
Patent. The relevant question in Open E Cry was
whether the factors that led to the court's construction
of “static” in the ‘132 and ‘304
Patents equally applied and carried through to the ‘055
Patent, requiring an identical construction, merely because
the ‘055 Patent uses the same term. Open E
Cry, 728 F.3d at 1322-23. The Federal Circuit answered
that “static” in the ‘055 Patent did not
necessarily require the same construction as the ‘132
and ‘304 Patents. Id. at 1323. Instead,
“the intrinsic record specific to the ‘055 Patent
distinguishe[d] eSpeed and compe[lled] a different
result”-notably a construction not limited to manual
re-centering. Id. Neither of these prior cases, nor
this Court's summary judgment ruling relied upon by IBG,
considered, or applied to, the ‘996 Patent currently in
core dispute with respect to the “static price
axis” term is whether the term should be read to be
limited to “manual” re-centering. As previewed
above, IBG asserts that this question has already been
answered in the affirmative by the Federal Circuit in
eSpeed. See (Dkt. 1047, pg. 15). Indeed,
the district court construed, and the Federal Circuit
affirmed that, as to the ‘132 and ‘304 Patents,
the claim required a manual re-centering command.
eSpeed, 595 F.3d at 1354. However, as highlighted by
Open E Cry, the construction of a term is specific
to the intrinsic record of the corresponding patent and
therefore, identical terms may have varying constructions
when considered in light of their respective intrinsic
records. Open E Cry, 728 F.3d at 1323.
Thus, in construing terms for the ‘996 Patent, the
Court is not restricted to how those terms were construed in
the intrinsic record and prosecution history of the
‘996 Patent warrant a different construction of
“static price axis” than that seen in the
‘132 and ‘304 Patents. The ‘996 and
‘382 Patents are closely related and were even
prosecuted at the same time and before the same examiner.
Their relatedness is instructive here. Similarly, at issue in
the ‘382 Patent was the term ...