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Construction site birds, 贝莉儿 DANIST, Unsplash

Late last summer, we posted about an interesting order from Judge Noreika rejecting the parties' claim construction chart for including too many terms. As Judge Noreika released a similar order just last week, I though it might be interesting to examine how firm the 10-term limit has been in the months since that first order.

The answer is "very." in the 20-some Markman orders Judge Noreika has issued since that first one, she has never once construed more than 10 terms. 4 times, she has rejected a claim construction chart for including more than 10 (14, 13, 13, and 17 terms were included in those rejected charts). In each case, she has ordered the parties to identify which 10 they would like to brief and argue at the Markman hearing, with any remaining terms "that have not been addressed but that the parties contend still require construction" to be briefed "in connection with dispositive motion briefing." See, e.g., Sensormatic Electronics, LLC v. Genetec (USA) Inc., C.A. No. 20-760-MN, D.I. 35 (D. Del. Apr. 30, 2021).

Notably, Judge Noreika has yet to reject any charts that include 10 or fewer terms, and has twice issued orders construing exactly 10 terms.

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