A Blog About Intellectual Property Litigation and the District of Delaware

Caution Warning
Bernd Dittrich, Unsplash

We've written a lot about the common D. Del. practice of limiting parties to 10 claim terms per case (at least for the Markman hearing).

We talked about a similar order from Judge Andrews earlier this month, and previous orders by Judges Connolly, Noreika, and Burke. Now, Judge Williams has set the same limit, in at least one action:

ORAL ORDER: Having reviewed the parties' Joint Claim Construction Brief (D.I. 96), IT IS HEREBY ORDERED that the Court will construe a maximum of ten (10) terms/term sets during the August 1, 2023 Claim Construction Hearing. The parties shall meet and confer and, no later than July 17, 2023, the parties shall file an Amended Joint Claim Construction Brief, which presents and addresses the ten (10) terms/term sets the parties selected for construction by the Court.

Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-GBW, D.I. 99 (D. Del. Jun. 23, 2023).

In the same oral order, he asked the parties to set forth "what the plain meaning is" for any "plain and ordinary meaning" claim terms:

IT IS FURTHER ORDERED THAT, for any term where a party's proposed construction is plain and ordinary meaning, or where the parties agree to a proposed construction of plain and ordinary meaning, the party or parties shall specify what the plain and ordinary meaning is in the Amended Joint Claim Construction Brief.

This is another fairly common practice these days among D. Del. judges. Yet despite at least one explicit warning, parties—often plaintiffs—still seem to commonly propose plain meaning with no explanation. At this point, at least, defendants have plenty of precedent to push back on that tactic.

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