Judge Burke issued an oral order on Thursday in OmniVision Technologies, Inc. v. RE Secured Networks, LLC, C.A. No. 24-187-JLH-CJB (D. Del.) expressing frustration due to the parties' inadequate claim construction briefing, and the resulting "inefficient" Markman hearing.
The parties submitted their joint claim chart back in March, identifying seven groups of terms. For three of the seven groups, the patentee offered positions like "Needs no construction" or "Not indefinite." D.I. 78-1 at 2-6. Some of these term groups were a bit odd (including, for example, a group called "preambles," which addressed three separate preambles across six claims spanning three patents). Counted separately, the parties sought to construe more than the 10 terms the Court typically permits.
Shortly after receiving the joint chart, the Court let the parties know that it would hear argument on only six terms at the hearing:
ORAL ORDER: The Court, having reviewed the parties' Joint Claim Construction Chart, (D.I. 78 , ex. A), hereby notes that at the Markman hearing, the Court will hear argument on no more than six terms. Ordered by Judge Christopher J. Burke on 03/28/2025.
D.I. 80.
The parties proceeded to file the joint claim construction brief. Afterwards, Judge Burke ordered them to further meet-and-confer on the terms:
On or before June 16, 2023, Delaware and lead counsel for the parties shall meet and confer and file an amended joint claim construction chart that sets forth the terms/issues that remain in dispute. The meet and confer shall focus on an attempt to reach agreement on any remaining disputed terms/issues where possible and on an attempt to focus the dispute over the remaining terms/issues in light of the parties' claim construction briefing.
D.I. 92. The parties met and conferred—but didn't make any progress. D.I. 97. The parties and the Court proceeded to hold the Markman hearing. Three days after the hearing, the Court put an order on the docket noting the problems with the parties' briefing:
ORAL ORDER: During the August 11, 2025 Markman hearing in this case, the Court discussed with the parties how the parties’ pre-hearing work did not sufficiently identify and tee up the core claim construction disputes as to a number of the terms at issue (exacerbated by RE Secured Networks’ failure to clearly articulate its proposed claim constructions for certain terms in writing during the briefing process)—and how this led to an inefficient Markman hearing and a waste of judicial resources.
D.I. 110.
The Court agreed to construe one term now, and asked the parties for an update on whether they could agree on a proposed construction for a second. As to the remaining five terms, in light of the issues the Court ordered the parties to further meet-and-confer and let the Court know 21 days before the SJ motion deadline if a dispute remains:
[T]he parties (including outside counsel and Delaware counsel) shall further meet and confer to ensure that they have a full and complete understanding of all aspects of the relevant claim construction and/or definiteness disputes between them, including as to whether any joint resolution as to those terms can be reached. After further meeting and conferring, if the parties believe that a material dispute still remains as to these terms and the terms require construction, then by no later than 21 days prior to the summary judgment motion filing deadline, the parties should advise the Court of this. The parties should also then let the Court know whether terms 2 and/or 4 are expected to be relevant to any issues that will be raised in the forthcoming summary judgment briefing. Thereafter, if needed, the Court will set out a further process for resolving any remaining claim construction disputes regarding those terms.
Id. The Court has used a similar procedure in at least one other case, so it's worth keeping in mind that it may be a potential outcome of a Markman hearing.
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