In Charles Smith Enterprises, LLC v. Catapult Sports, Inc., C.A. No. 21-1278-CFC (D. Del.), the parties filed a 60-page joint claim construction brief that included disputes on a number of terms where one party or the other proposed "plain and ordinary meaning" or "no construction necessary" while the other side proposed a specific definition for the terms.
By my count, for every single one of the parties' 15 disputed terms, one side or the other proposed "plain and ordinary meaning" or "no construction necessary" with no alternative construction—before Chief Judge Connolly, no less. These counsel clearly don't read this blog.
In some instances, the parties just briefed the terms in an odd way. For example, plaintiff proposed construing "a customizable media logging system for indexing media,” which defendants argued should get plain and ordinary meaning. But defendants then offered a construction for “customizable media logging system”—the exact same phrase except lacking "for indexing media"—and plaintiff argued "no construction necessary."
In response, Chief Judge Connolly ordered the parties to offer new constructions—for new terms:
The parties shall file no later than February 22, 2023 proposed constructions of the following terms as used in the asserted patents: (1) customizable; (2) custom; (3) media; (4) timer object; (5) time reference; and (6) graphical user interface generator. If a party believes that a term should be given its plain and ordinary meaning, then the party needs to state what that plain and ordinary meaning is.
This does two things: it splits some of the longer phrases up into smaller pieces, and it requires a meaning for each piece.
The Court went beyond that, however, and offered rare and specific guidance for what the constructions should be:
The construction of each term must be of the term. Thus, it is not acceptable say that "media" should be construed as "media in an MPEG stream," see D.I. 55 at 13, as that begs the question "what does 'media' mean?"
Beyond that, the Court invoked grammatical language to guide the parties' constructions:
It is also not acceptable to construe a noun as a sentence or an adjective. See D.I. 55 at 29. Nouns should not be construed as anything other than nouns and adjectives should not be construed as anything other than adjectives.
I imagine this is useful guidance for any case before Judge Connolly, and it will be in my arsenal next time a party refuses to offer a construction for a term at issue.
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