OANDA and GAIN Capital have informed the Court that they have agreed to mediate before the Honorable Noel L. Hillman, U.S.D.J. (Ret.), as the patent infringement lawsuit brought by OANDA against GAIN continues.

The mediation conference will take place on September 6, 2024.

Thus far, the settlement talks that the two Forex brokers have held have been short and unfruitful.

This is a patent case involving electronic trading of foreign currencies. OANDA filed a complaint against GAIN on May 11, 2020 alleging that GAIN infringes two patents, U.S. Patent No. 7,146,336 (the “’336 patent”) and U.S. Patent No. 8,392,311 (the “’311 patent”).

The Asserted Patents are related (the ’311 patent is a child of the ’336 patent) and share the same specification. The patent claims are directed generally to using computer networks to trade currencies, and more specifically by aggregating rates from financial institutions, determining a market exchange rate, and executing a trade if the rate falls within a trader’s acceptable parameters.

The ’336 patent contains “system” claims that recite various “servers” and “engines” that purportedly take part in executing a trade. The ’311 patent contains method claims reciting steps performed by a “trading system server” and a “trading client system” to effect a trade.

With respect to damages (to the extent OANDA’s patents are not found to be valid or unenforceable and are found to be infringed), OANDA has represented that it intends to only seek a reasonable royalty in this case, not any lost profits. In addition, OANDA has admitted that it did not comply with the marking requirements of 35 U.S.C. § 287 and did not mark products produced under the asserted system patent and thus is limited in any damages it may attempt to seek.

Thus far, some significant discovery has taken place. Document production is largely complete. The Court has ruled on multiple discovery motions, including allowing OANDA and GAIN to supplement their infringement and invalidity contentions, respectively, and denying an OANDA motion to compel certain burdensome discovery from GAIN.

Some depositions have occurred, but the bulk of depositions have yet to take place. Discovery does not close for approximately seven months. There is no outstanding discovery to date, and OANDA has not raised any discovery issues with GAIN. Thus, there are no ripe discovery disputes at this time.

In another patent infringement lawsuit concerning similar patents asserted against GAIN’s parent, StoneX Group, Inc., the Illinois Northern District Court rejected the argument that OANDA’s facts pleaded in the complaint must be taken as true and found that the asserted patents related to currency trading were invalid under § 101 and dismissed OANDA’s claims with prejudice. That judgment is now final.