Aaaand we're back! We extended the blog break a bit because I was traveling last week to participate on a panel about AI-related litigation at the Sedona Conference. There have been several interesting AI-related copyright decisions this year (including in Delaware), and we may post about them down the line.
For now, I wanted to alert everyone that Judge Burke posted a set of "Tips Regarding Markman Briefing and Hearings" on his website.
The document has 10 total tips, all directed towards Markman practice before Judge Burke. But I would say that it is definitely worthwhile reading for any Delaware litigator. The tips include guidance regarding (spoiler alert):
- The number of terms Judge Burke will hear and decide at the Markman stage
- How to propose a plain and ordinary meaning construction
- How not to waste time and space with unhelpful material and inapposite citations in a Markman brief
- How to set forth the disputes regarding each term
- How to effectively brief means-plus-function (MPF) terms
- What should be in your Markman slides, and great rule of thumb for how many slides you should have
- How to raise a late argument at a Markman hearing (!!)
- Whether (and how) to present indefiniteness at the Markman stage
Each of the judges here in Delaware does things slightly differently, but many of these points track the advice we give in typical Delaware patent cases before any judge—including on this blog. Every patent litigator with cases in Delaware should take a careful look at these!
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