CBOE-ISE trial over automated trading patent is canceled

A patent trial pitting International Securities Exchange LLC against Chicago Board Options Exchange Inc. was canceled on its scheduled opening day in federal court in Chicago.

ISE, a unit of Deutsche Borse AG, had accused the CBOE Holdings Inc.-owned exchange of infringing an automated-trading patent. Initially scheduled to start on March 11, the trial before U.S. District Judge Joan H. Lefkow was delayed three days while she resolved pretrial motions.

Following the announcement, CBOE released the following statement: “We are gratified that this case has reached the correct result,” said CBOE Chairman and CEO William J. Brodsky. Incoming CBOE CEO and current COO and President Ed Tilly added, “CBOE has always been and will continue to be the leading innovator in the options industry.”

Jonathan Marshall, an attorney for the CBOE, said in a courtroom interview that lawyers for ISE asked Lefkow to enter an order of non-infringement so that they can appeal a series of her adverse rulings.

ISE concluded the “net effect of the rulings would make it impossible to make their case at trial,” Marshall said.

Michael Dooley, Lefkow’s courtroom deputy, independently confirmed the trial had been canceled and the jurors discharged. Farhan Husain, a spokesman for New York-based ISE, declined to immediately comment on the cancellation.

ISE released the following statement: "ISE strongly believes in the merits of its case that CBOE copied and continues to infringe ISE's patented trading technology, and ISE plans to immediately file an appeal to the Federal Circuit to reverse these rulings. ISE will have no further comment at this time."

In a ruling made public on March 11, Lefkow barred ISE from presenting evidence of pre-suit damages to the jury, concluding that the exchange had failed to comply with a federal “marking statute,” requiring it to make public its patent claim.

The cases are Chicago Board Options Exchange Inc. v. International Securities Exchange LLC, 07-cv-00623, and International Securities Exchange LLC v. Chicago Board Options Exchange Inc., 07-cv-04709, U.S. District Court, Northern District of Illinois (Chicago).

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