We've written in the past about the ongoing struggle to reduce disputed claim terms. Judge Connolly's form scheduling order requires parties to meet and confer to try to reduce disputes before the Markman hearing, and Judge Noreika frequently imposes a similar requirement after briefing is complete.
Some parties treat this process as a formality, believing that they can comply with a short, perfunctory phone call and a letter stating that the parties couldn't agree. This is a dangerous approach to claim construction meet-and-confers, and it doesn't comply with the letter (or the spirit) of the judges' orders.
Judge Connolly drove this point home in a recent oral order, issued the day before a Markman hearing:
Having reviewed the claim construction briefing, the Court notes that the parties have taken positions that appear on their face to lack merit. Both sides offer numerous constructions without support, including for terms that appear abundantly clear on their face. The Court is skeptical that many of the briefed terms require construction and that reasonable parties with reasonable counsel could not have agreed on the plain meaning of the disputed terms. The Court further notes that outside counsel in this case do not appear as often as other counsel the Court regularly sees in patent cases. Now therefore, it is HEREBY ORDERED that counsel who will make argument at tomorrow's hearing are required to meet and confer by telephone today with their Delaware counsel on the line, that Delaware counsel are to take an active role in the meet and confer, and that the parties are to submit a letter to the Court no later than 4:00 p.m. this afternoon reporting on their meet and confer efforts and the results thereof.
It's unclear from the docket what actually happened in the parties' prior meet-and-confers, so we can't comment on that. But orders like this one are a good reminder that the D. Del. judges expect parties to take the Markman meet-and-confer process seriously (and concede weak positions when necessary).
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