We've talked about this before, but it was so long ago that I think it's worth pointing out again. Typically, left to their own devices, parties in patent cases will schedule initial contentions, then claim construction and a Markman hearing, and then final contentions.
In theory, the final contentions can then reflect claim constructions. In practice, it doesn't always work out that way, given that a Markman opinion may come out after the hearing anyway. If you want to have constructions before final contentions, you need to leave a fair bit of space after the Markman hearing, so that the Court has time to decide claim construction. Only some of the judges tend to issue claim construction rulings at the hearing—and even those who do may sometimes need more time.
In Judge Noreika cases, though, parties should remember to schedule the Markman hearing after final contentions. She reminded litigants of this again yesterday, after the parties in a patent action filed a stipulated schedule amendment that would have resulted in the Markman hearing taking place before final contentions:
SO ORDERED WITH MODIFICATION re (151 in 1:24-cv-01161-MN, 166 in 1:24-cv-00095-MN) Stipulation and Order Regarding Case Coordination and Scheduling Order - It has been the practice of this Court to construe claims only after final contentions on infringement, noninfringement, validity and invalidity have been submitted under all proposed constructions.
Advanced Accelerator Applications USA, Inc. v. Curium US LLC, C.A. No. 24-1161-MN, D.I. 172 (D. Del. June 10, 2025).
To conform with Judge Noreika's practices, the Court moved the Markman hearing back until after final contentions:
The parties' schedule has briefing and argument on claim construction prior to final contentions. THEREFORE, IT IS HEREBY ORDERED that the Stipulation is GRANTED WITH MODIFICATION. The Court will set a claim construction hearing for 7/25/2025 at 10:00 AM in Courtroom 4A (after final contentions).
Id. Interestingly, the Court left the claim construction briefing dates in place (prior to the final contentions), and instructed the parties to let the Court know that the briefing remains accurate after the final contentions:
After final contentions, but prior to that hearing, the parties shall confirm to the Court whether the joint brief that has been submitted accurately reflects the parties' positions and disputes. Signed by Judge Maryellen Noreika on 6/10/2025. (dlw) (Entered: 06/10/2025)
Id.
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