A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Meet-and-Confer

Court Orders In-Person Claim Construction Meet-and-Confer by Lead Trial Counsel, In the Courtroom in Delaware, Continuing Until Excused

Andrew E. Russell, March 3, 2023
Meet-and-Confer Claim Construction

Unhappy Attorneys
AI-Generated

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 …
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Finding Short Meet-and-Confer Did Not Show Good Faith, Judge Noreika Orders In-Person Meet-and-Confer by Lead Trial Counsel

Andrew E. Russell, Dec. 28, 2022
Meet-and-Confer Claim Construction

Attorneys at Table
AI-Generated, displayed with permission

This is an interesting order from earlier this month that we never had a chance to post about.

In Ecobee, Inc. v. EcoFactor, Inc., C.A. No. 21-323-MN (D. Del.), the parties had a Markman hearing scheduled for December 8. As she often does, in the leadup to the hearing, Judge Noreika issued an order directing lead counsel for the parties to meet-and-confer to reduce the number of disputes:

ORAL ORDER . . . IT IS HEREBY ORDERED that, on or before 12/1/2022, local and lead counsel (i.e., those attorneys that will be leading trial) for the parties shall meet and confer and file an amended joint claim construction chart that sets forth the …
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Court Criticizes Plaintiffs' "Heading-Scratching Decision" to Meet and Confer Only One Hour Before Deadline, Sua Sponte Strikes Part of Status Report

Andrew E. Russell, Feb. 22, 2022
Joint Status Report Sua Sponte

Clock
Tristan Colangelo, Unsplash

The District of Delaware sometimes requires the parties to file joint status reports, usually either at dates set in the scheduling order (e.g. an "interim status report") or following developments in the case that require more information, like a stipulated stay that has expired, or after a communication from the parties regarding a development in the case.

Typically, by convention, plaintiff handles the initial draft of these reports—but not always. Either way, one side will send a draft, and the other side will prove its position, sometimes reflexively opposing whatever is in the initial draft. The final report will often be split, with "Plaintiff's position" and "Defendant's position," although sometimes the parties will agree to a …

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Judge Noreika Threatens Sanctions If Parties Don't Try to Agree on Claim Construction

Andrew E. Russell, Oct. 12, 2021
Meet-and-Confer Claim Construction

What I imagine claim construction arguments looked like
Immo Wegmann, Unsplash

Last week, Judge Noreika issued an interesting oral order regarding a claim construction dispute that was briefed—haphazardly, apparently—in the parties' summary judgment papers.

She criticized the briefing, ordered the parties to meet-and-confer and file ordinary claim construction briefing, and threatened sanctions if the parties don't try hard enough to reach agreement:

ORAL ORDER − In their summary judgment papers, the parties include arguments that either three or four additional claim terms must be construed by the Court. The parties' arguments are disjointed, do not focus on the intrinsic evidence and do not demonstrate any real understanding of what that other side's construction is. Thus, IT IS HEREBY ORDERED that, on or before 5:00 PM on …
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