Sometimes it's nice to know what doesn't work.
In AlterWAN, Inc. v. Amazon.com, Inc., C.A. No. 19-1544-MN (D. Del.), the parties stipulated to a judgment of non-infringement after the Court construed certain terms of the patent, and then appealed to the Federal Circuit.
The Federal Circuit vacated the stipulated judgment because it found it was not specific enough, and remanded the case. See AlterWAN, Inc. v. Amazon.com, Inc., 63 F.4th 18, 23 (Fed. Cir. 2023) (“[W]e cannot ‘ascertain the basis for the judgment’ of non-infringement, . . . because the parties did not adequately explain how the claim construction rulings related to the accused systems.”).
On remand, the parties jointly requested that the District Court hold a Markman hearing before setting the remainder of the case schedule, so that the plaintiff can decide whether it wants to pursue the case:
The parties are in agreement that the Court’s construction of the pending claim terms, including “non-blocking bandwidth,” may again be case dispositive. Therefore, instead of spending time at the outset resolving fundamental disputes concerning the scope of proceedings on remand and ironing out a case schedule, all of which could prove to have been unnecessary, the parties respectfully propose that for now Your Honor just schedule a Markman hearing and give AlterWAN 14 days after receipt of the Court’s claim construction decision to elect whether it will proceed to trial or will stipulate to non-infringement in order to appeal the claim construction issue. If the former, we can address the disputes concerning the remaining case schedule at that time. If the latter, none of that time ever will need to be spent.
AlterWAN, Inc. v. Amazon.com, Inc., C.A. No. 19-1544-MN, D.I. 340 (D. Del. Nov. 13, 2023).
Judge Noreika's response, issued the next day, was an unambiguous no:
ORAL ORDER re 340 Letter - The Court rejects the parties' proposal to postpone moving this case forward until the Court construes a claim term and Plaintiff decides whether it wishes to again stipulate to noninfringement. The Court sees no need to address issues in this case piecemeal. THEREFORE, IT IS HEREBY ORDERED that, on or before December 15, 2023, the parties shall meet and confer and submit a proposed schedule for moving this case forward. ORDERED by Judge Maryellen Noreika on 11/14/2023. (dlw) (Entered: 11/14/2023)
Id., D.I. 341. So there you have it. Another data point.
We'll have to see if the parties proceed submit a schedule with no trial date that happens to set all subsequent dates relative to the Court's Markman order and—if so—whether the Court goes for it.
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