The patent infringement cases that Trading Technologies Inc. (TT) has brought against a slew of software vendors, brokers and customers has passed another mile marker on the way to the June trial date but the case appears weaker as TT lost another battle.
In late February, James B. Moran, senior judge of the U.S. District Court denied TT’s motion to reconsider his opinion that software created by eSpeed Inc., Rosenthal Collins Group LLC, GL Consultants Inc., CQG and FuturePath Trading LLC, did not literally infringe upon two patents describing what has become known as the static ladder order entry system.
“The judge’s ruling resulted in a narrow scope of protection that can easily be avoided by others who have trading software in the marketplace,” says Mark W. Fischer, partner at Faegre & Benson LLP and who represents CQG. “Everybody can avoid the patent infringement allegation by making the ladder move automatically.”
The memorandum of opinion leaves open the possibility of finding infringement based on “the doctrine of equivalence,” meaning that TT would have to prove that the other software applications perform the same function and accomplish the same goals in substantially the same way.
“I think it’s a very positive result. But I don’t think it’s ‘game over,’” says Geoff Baker, lead trial attorney for Rosenthal Collins Group LLC. “Harris [Brumfield, CEO of TT] is in this for the long haul. But the haul just got longer. It’s fairly apparent to all the non TT parties that TT will have a very difficult time overcoming summary judgment motions of non infringement, if anybody files one.”