A Blog About Intellectual Property Litigation and the District of Delaware

Unhappy Attorneys

Judge Noreika is well known at this point for requiring real, substantive meet-and-confers on claim construction. In multiple cases, she has directed parties to further meet-and-confer after finding their initial efforts insufficient.

She issued another such order this week, this time directing the parties to have what appears to be a supervised meet-and-confer, in person in the courtroom:

ORDER . . . The parties did not comply with the Court's February 13, 2023 Oral Order requiring a good-faith meet and confer. Instead, the parties spoke for just 20 minutes about 10 disputed terms, as well as "hearing logistics" and a proposal by MarkForged to request deferral of certain claim constructions until dispositive motions. There is no breakdown indicating how many of those 20 minutes were actually devoted to attempting to reach agreement on or focus the remaining claim construction disputes, which is what was required by this Court's order. But even if every minute were devoted to attempting to reach agreement, that amounts to just 2 minutes per term. This lack of effort shows a lack of respect for this Court and its Order. THEREFORE, IT IS HEREBY ORDERED that, beginning at 10:00 AM on March 8, 2023 and continuing until excused by the Court, lead counsel (i.e., counsel who will be trying the case) shall meet and confer IN PERSON IN COURTROOM 4A and comply with this Court's February 13, 2023 Oral Order. Failure to do so may result in sanctions. ORDERED by Judge Maryellen Noreika on 3/2/2023. (dlw) (Entered: 03/02/2023)

Continuous Composites, Inc. v. Markforged, Inc., C.A. No. 21-998-MN, D.I. 117 (D. Del. Mar. 2, 2023).

It looks like the claim construction hearing is set for 2:00 pm on that same day, so the order may not be quite as impactful as it seems at first blush—but it's still significant.

The mechanics of this are left open. I wonder if the claim construction meet and confer will be open to the public? And how long will it go? Will Judge Noreika be in the courtroom—and if not, how will she monitor progress in order to excuse the parties once they have complied?

In any case, this is another good reminder not to shorthand claim construction meet-and-confers in Judge Noreika cases.

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