I've noticed that, since November of last year, Judge Burke has been issuing claim construction opinions in some cases in the form of a series of oral orders on the docket, rather than a formal memorandum opinion or an order with footnotes. I thought I'd flag this so that people know what may happen if you have claim construction in a case before Judge Burke.
I first saw the Court construe terms via oral orders on the docket in November 2023, in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 22-057, D.I. 140-141 (D. Del. Nov. 9, 2023). There, the Court addressed the construction of two terms, each in its own lengthy oral order along these lines:
ORAL ORDER: The Court, having reviewed the parties' motions for claim construction regarding the second term to be construed ("identify[ing] a first frequency component having a first spectral power and a second frequency component having a second spectral power by performing a spectral transform operation on the first frame of media samples" (the "identifying term")), . . . the briefing related thereto, . . . having considered the legal standards regarding claim construction, . . . and having heard argument at a Markman . . . , hereby ORDERS that the "identifying" term be construed to mean "generate first and second frequency components by performing a spectral transform operation on the first frame of media samples" (i.e., Plaintiff's proposal). The Court adds the following with regard to its rationale: [lengthy discussion of the Court's view on five separate points raised by the parties regarding this term]. Ordered by Judge Christopher J. Burke on 11/9/2023.
Since then, the Court has done this in several cases. In Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB (D. Del.), for example, the Court issued a series of oral orders addressing individual terms, starting just over 30 days after the Markman hearing:
- 01/18/2024 - D.I. 118: "ORAL ORDER: The Court . . . hereby addresses the construction of term 1: [setting forth term and lengthy discussion]"
- 01/18/2024 - D.I. 119: "ORAL ORDER: With regard to the parties' motions for claim construction, . . . the Court now addresses the construction of term 2: [similar lengthy discussion]"
- 01/26/2024 - D.I. 121: "ORAL ORDER: With regard to the parties' motions for claim construction, . . . the Court now addresses the construction of term 3: [similar lengthy discussion]"
- 02/06/2024 - D.I. 126: "ORAL ORDER: With regard to the parties' motions for claim construction, . . . the Court now addresses the construction of term 4: [similar lengthy discussion]"
The Court has continued this technique in other cases, including for example:
- State Farm Mutual Automobile Insurance Co. v. Amazon.com, Inc., C.A. No. 22-1447-CJB (D. Del. Jan. 2024): Three terms construed in three separate orders over two days, starting seven days after the Markman hearing.
- Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821-CJB (D. Del. Mar.-Apr. 2024): Seven terms construed in seven separate orders over the course of just over three weeks, staring 187 days after the Markman hearing.
- Hilti Aktiengesellschaft v. Specified Technologies Inc., C.A. No. 22-1383-CJB (D. Del. Mar. 25, 2024): Three terms construed in three separate orders all issued on the same day, four days after the Markman hearing.
- Qfix Systems, LLC v. Klarity Medical Products, LLC, C.A. No. 23-77-CJB (D. Del. Apr. 2024): Two terms construed over twelve days, starting six days after the Markman hearing.
- Parus Holdings Inc. v. Amazon.com, Inc., C.A. No. 23-190-GBW-CJB (D. Del. May 3, 2024): Four oral orders (some titled "Report and Recommendation") construing four terms, starting six days after the Markman hearing and spanning three days.
- Agilent Technologies, Inc. v. Axion BioSystems, Inc., C.A. No. 23-198 (D. Del. Aug. 2024): Seven oral orders construing seven terms over seven days, starting two days after the Markman hearing.
As you can see, it looks like these generally start to issue within about a week after the Markman hearing, and the Court does one term per oral order, sometimes spread over up to three weeks.
This is an interesting new technique that I haven't seen the Court apply before. Just based on the dockets, it looks like it could help the Court get decisions to the parties quickly. A turnaround of one week or less is much faster than Judge Burke's (and former Judge Stark's) stated goal of having claim construction opinions out within 60 days.
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