A Blog About Intellectual Property Litigation and the District of Delaware

In a case that's been pending for years, Judge Connolly just ordered the parties to redo their three-year-old Markman briefs.

Although the parties briefed and argued claim construction at the end of 2017, Judge Sleet granted an IPR stay before a Markman opinion was issued. While the stay was in place, Judge Sleet retired and the case was reassigned to Judge Connolly.

The parties were set to argue claim construction again this week, with 18 disputed terms from the plaintiffs' patents and 26 disputed terms from the defendant's patents. But on Monday, Judge Connolly issued an oral order cancelling the Markman hearing and ordering the parties to substantially narrow their disputes (to 10 limitations for each side's patents).

He also ordered the parties to file a joint claim construction brief within a month, and made clear that it shouldn't just be a copy-and-paste job:

The brief shall not be accomplished by merely copying and pasting portions of the original briefing filed before Judge Sleet. Rather, each side shall engage the other side's arguments in its respective briefing in a manner that helps the Court understand the arguments and the points of difference maintained by the parties. In other words, the briefing shall NARROW the disputes.

The lesson: If your case is reassigned or transferred to D. Del., don't assume that your existing schedule and procedures will be grandfathered in (and if there's a potential conflict, raise it quickly).

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