Trading Tech Lawsuit Yields Mixed Results

2008-1392 Trading Tech v. eSpeed
ND/IL 04-cv-5312

Both parties have appealed from various orders of Judge James Moran.  The case has a plethora of issues, mixed rulings, and reversals.  Excellent coverage of the district court proceedings is provided by David Donoghue at Chicago IP Litigation Blog.

Trading Tech brought several suits, including this one against eSpeed and Ecco, alleging infringement of 6,766,304 and 6,772,132, both similarly directed at software used in electronic trading in the futures market. 

The court granted eSpeed summary judgment of non-infringement related to its current software programs, but the fate of other accused products was tried to a jury verdict of willful infringement and an award of $3.5 million (including $1.5 million against eSpeed).  However, the court conditionally granted eSpeed a new trial on damages unless TT accepted a remittitur of the eSpeed apportionment to approx. $540,000.  It is not clear from the record if TT accepted or not.

eSpeed Appeals:  eSpeed designated for appeal the court's order entering a permanent injunction against versions of eSpeed Futures view, Ecco Price Ladder, and eSpeed Autospeed Basis and materially-similar products.  According to the record, these programs were only used during a short period of time several years ago.  As Chicago IP noted, the fact that eSpeed no longer used these programs favored the grant of an injunction because there was no real harm to eSpeed.

Trading Tech Appeals:  TT has designated for appeal:

Orders on claim construction, including reconsideration.  In particular were the terms "static price axis" and "order entry region."  The court required the former to require a manual re-centering of the price display and the latter to exclude a "pop-up window" in the software display;

Order granting eSpeed partial summary judgment of non-infringement as to the Dual Dynamic, eSpeedometer, and modified eSpeedometer programs.  These programs essentially had a dynamic price axis with automatic re-centering and used a pop-up window for placing an order;

Order granting partial summary judgment to TT on prior public use under § 102(b).  The software was in development before the critical date, and also is "use."  eSpeed alleges it was commercial use which, albeit secret, is nevertheless "public."  TT argues it was experimental in nature and done to test the program.  The court granted summary judgment of no public use prior to March 2, 1999.  However, the parties' also disagreed on the critical date:  TT claimed March 2, 1999, while eSpeed claimed June 9, 1999.  The court found questions of fact precluded summary judgment for either party as to public use between March 2 and June 9, 1999.  Determination of the critical date was put off for another day.

Order granting eSpeed's JMOL on willfulness.  Despite the jury finding, the court found insufficient evidence to support willfulness--specifically lacking was an "objectively high likelihood that its actions constituted infringement of a valid patent."  The programs that were found to infringe were all written and sold before the patents issued and, upon issuance, eSpeed immediately stopped selling those programs and began a design-around.  There was no evidence or suggestion that eSpeed copied TT's program (as opposed to its functionality).