Opinion
No. 04 C 5312.
August 27, 2007
MEMORANDUM OPINION AND ORDER
In preparation for its trial against eSpeed, Inc., eSpeed International, Ltd., Ecco LLC, and EccoWare Ltd., (collectively "eSpeed"), plaintiff Trading Technologies International, Inc. ("TT") renews its motion to strike eSpeed's motion for summary judgment of invalidity based on alleged prior sale and to preclude eSpeed from offering the defense at trial. Originally presented during this court's absence, Judge Shadur granted TT's motion to strike pending review by this court. Upon our return, we affirmed Judge Shadur's ruling, determining that it was too late for eSpeed to file another motion for summary judgment on a previously undisclosed defense. The sole remaining issue is TT's request that we preclude eSpeed from raising the new defense — invalidity based on prior sale — to the jury during trial. We decline to do so — eSpeed may present its full arsenal of defenses to the jury. If, as TT contends, the defense has no merit, the jury will so conclude. TT's motion to preclude eSpeed from presenting a prior sale defense at trial is denied.