A recurring question here in D. Del. is "how long should we request for the Markman hearing?" (when such a request is required under the scheduling order).
Parties often request around 2-3 hours, depending on the number of terms. But I was curious how much time judges actually order for Markman, so we collected some statistics. Here is how many minutes each judge has permitted for Markman oral argument, on average, over the last year:
- Judge Stark: 91 minutes on average (7 hearings)
- Judge Andrews: 92 minutes on average (9 hearings
- Judge Noreika: 102 minutes on average (18 hearings)
- Magistrate Judge Burke: 170 minutes (9 hearings)
- Magistrate Judge Hall: 159 minutes (7 hearings)
There is no data for Chief Judge Connolly and Magistrate Judges Thynge and Fallon. Chief Judge Connolly typically does not set oral argument times on the docket. Judge Fallon has done so in the past, but not in the last year. Her older cases indicate she typically permits about 2 hours, although her times range between 1 and 3 hours.
The overall average for cases in the last year is 117 minutes, or about 2 hours. The minimum amount of time for any case during that time was 40 minutes (20 minutes per side). The maximum was 270 minutes or 4.5 hours, which was offered in a Judge Burke case where the parties informed the Court that a newer attorney was arguing.
Here is the breakdown for the number of times the Court used each of the most common time allocations in the last year:
- 1 hour: 7 hearings
- 1.5 hours: 14 hearings
- 2 hours: 12 hearings
- 3 hours: 11 hearings
Note that all of these times are the total for both sides' argument. In every instance, the time was split equally between the each side. Additionally, these are the set times for argument. It is not uncommon for these hearings to run over the allotted time, and several of our judges may also take some time at the end of the hearing to read their rulings.
Planning for a Markman Hearing
When planning for a Markman hearing, it's best for the parties to agree on an order for the presentation of terms before the hearing. This is sometimes done between counsel at the hearing itself, just before the judge comes in, but it's probably best to do it by e-mail in the lead up to the hearing. If the parties can't agree on an order, one option is to use the order in the joint claim chart.
It's worth discussion presentation order before the hearing. The judges seem to appreciate it. Further, terms can sometimes be grouped together to streamline the argument. Other times the parties may even drop terms, or may agree to rest on the papers to give more time to more important terms.
It's best to put the most important terms towards the beginning of the hearing if possible. Time flies, and exhaustion seems to set in quickly, so the early terms almost always get the most attention. Terms towards the end of the hearing may get short shrift.
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