Judge Connolly put this oral order on the docket on Thursday:
ORAL ORDER: The Court has read Plaintiffs' April 7 letter . . . . The Court understood Mr. Groombridge's response to be in substance what Plaintiffs outline in their letter. The Court asked an imprecise question. But the Court had in mind what Mr. Groombridge had in mind. Mr. Groombridge has appeared before the Court on numerous occasions and the Court appreciates and respects his practice of conceding points he should concede and getting to the heart of the disputed matters before the Court. All counsel would do well to follow his lead in that regard.
Amgen Inc. v. Hospira, Inc., C.A. No. 20-201-CFC (D. Del. Apr. 8, 2021).
The letter doesn't lay the entire situation out, but it appears that the following exchange occurred at a Markman hearing:
The Court: "[I]f I rule against you, this case is over. Right?"
Mr. Groombridge: "That’s correct, Your Honor."
Thus, plaintiff's counsel agreed that the case would end with an adverse ruling, but it turns out that it wasn't quite correct. The letter indicates that an adverse ruling would resolve literal infringement, but not infringement under the doctrine of equivalents. So the case wouldn't actually be "over."
In other words, Plaintiffs' counsel had inadvertently conceded DOE. Plaintiffs rightly (and quickly) filed a letter to correct the issue after the argument, resulting in the Court's appreciative note on the docket. Nice!
Judge Connolly's note reflects advice I've heard repeatedly from the judges during panels and other public appearances: They really appreciate and respect counsel who are willing to concede points at oral argument, because it makes their lives so much easier (much like when counsel agree to reasonable case management compromises).
The tricky part is, obviously, knowing when to concede.
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