It has been pointed out that many of my references are so oblique as to be indecipherable. Rather than improve the practice, I have resolved to simply include a footnote at the bottom of each post, lest they go unappreciated.
The best and worst artists please themselves first.
Anyway, today's case is Cosmokey Solutions GmbH v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB (D. Del. May 19, 2025).
The defendant there brought a Daubert motion to preclude the plaintiffs' experts testimony on the grounds that he offered a "legally wrong construction" of one of the claim terms. Naturally, this motion was brought long after the Court issued its Markman order. Neither party had proposed construing the term during the usual claim construction process.
The Court issued its order denying the Daubert about a month before the trial was to begin. In that order, Judge Hall proposed an unusual procedure for resolving the claim construction dispute if it remained live at trial:
To the extent that there is a dispute over the proper construction of “authentication function,” the Court will rule on that dispute at the jury charge conference, i.e., after the close of evidence but before the case is submitted to the jury. Proceeding in this fashion will not prejudice Plaintiff, as Plaintiff is well aware of why Defendants contend that they don’t meet the “authentication function” limitation, and Plaintiff can thus plan its trial presentation accordingly. The Court declines to issue a construction of “authentication function” now, both because (1) Defendants first requested a construction from the Court in their Reply Brief in support of their Daubert motion and (2) Defendants have not proposed a specific construction of “authentication function.”
Id. at 2 n1 (internal citations omitted).
It'll be interesting to see how this all plays out at trial -- it's not clear from the briefing to what extent this issue is dispositive. We'll send one of our intrepid reporters to cover any fireworks that ensue.
(Eds. promised FN - It's a reference to the title of my third-favorite Jeunet and Caro film. Yes, it is a stretch. No, vous êtes pretentious.)
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