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Wolf in the Forest, Philipp Pilz, Unsplash

I don't have the full transcript, but based on quotes set out in a letter filed by the parties, Judge Connolly recently set forth his thoughts on the kinds of issues he is willing to address early in the case:

Now, what I try to do when I think there's kind of a silver bullet, I move it to the top of the pile. That's what I do on indefiniteness.

According to the letter, Judge Connolly was prepared to stay the case and expedite summary judgment briefing on indefiniteness if it was case dispositive. Defendant declined that offer in a letter after the hearing.

Judge Connolly also suggested that he might expedite a FRCP 12(c) motion for judgement on patent marking if defendant agreed to pay the other side's fees if they lose:

[O]n the marking, I guess what I tell you, if you feel really comfortable on that, why don't you consider are you willing to pay the costs of litigating that motion if you lose, and I am not sure whether I could hear it early or not, but you can give it some thought as you speak with your client and then speak with the other side about how the case should move forward.

Defendant interpreted the offer as an offer by the Court to expedite its ruling on the motion, which has been pending since March 2020, if it agreed to pay attorneys fees. But the quoted transcript suggests the Court intended to offer an early hearing on a new marking motion, if that motion was dispositive.

In a letter after the hearing, defendant sought clarification, and plaintiff argued the existing marking motion was non-dispositive and the ruling shouldn't be expedited. Judge Connolly agreed:

ORAL ORDER: The Court has reviewed the parties' letter dated October 30, 2020 . . . . The Court is not amenable to expediting a ruling on a motion that is not case dispositive. Ordered by Judge Colm F. Connolly on 11/5/2020.

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