A few months ago, we wrote about claim narrowing in patent cases, noting that Delaware judges will often set additional limits when a case reaches trial. Because this typically comes up during the pretrial conference, there is often no written record on the docket.
Last Thursday, however, Chief Judge Connolly issued a rare, written order requiring the parties to narrow their claims and defenses before trial:
ORAL ORDER: Per today's call, it is HEREBY ORDERED that the pretrial conference will be held on July 27, 2021, and the trial will be held on August 2, 2021. Plaintiff shall identify for Defendant no later than 5:00 p.m. on July 7, 2021 no more than two patents and no more than a total of six claims from those patents that Plaintiff may seek to assert at trial. Defendant shall identify for Plaintiff no later than 5:00 p.m. on July 12, 2021 the invalidity theories that Defendant may seek to assert at trial. Defendants invalidity theories shall consist of (1) no more than a total of nine combinations of obviousness references and no more than two such combinations for any one asserted claim; (2) no more than one anticipation defense for any asserted claim; and (3) no more than nine § 112 defenses in total and no more than two such defenses for any one claim.
This order was apparently issued at the defendant's request, and it reduced the number of asserted patents from five to two.
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