Last month, we took a look at how the different judges handle indefiniteness at Markman, a question that comes up a lot.
We reported that every judge will hear argument about indefiniteness issues at Markman. But in the Judge Connolly specific section, we noted that he has never held a term indefinite in a Markman opinion, and has instead deferred ruling on the issue until summary judgment (citing two examples). See the full post for details.
Yesterday, at a hearing, Judge Connolly mentioned a blog post and stated that the post was incorrect in suggesting that he considers indefiniteness at Markman. He clarified that he does not permit indefiniteness argument at Markman. Instead, he might entertain early summary judgment motions, very rarely, when there is a compelling argument, and he has granted such motions only twice. See Volterra Semiconductor LLC v. Monolithic Power Systems, Inc., C.A. No. 19-2240-CFC-SRF, at 18:16-24 (D. Del. May 12, 2021) (transcript).
We sincerely apologize for the misstatement, and we have corrected the post.
A Note About Corrections
I hope with the blog that we can always offer the best information available, while also getting posts out quickly when interesting things happen, so that we can be a useful resource for attorneys practicing here. As such, we try to include or reference our source material in every post, so that readers can make their own judgments, even if we do not use formal citations.
But sometimes we have less than perfect sources. For example, sometimes transcripts are not available on the docket, and we've relied on things we've heard from other attorneys. We've also had to rely at times on things like the notoriously flawed PACER trial calendar, which we've used to try to decipher the upcoming jury trial schedule.
The Volterra hearing yesterday illustrates how important it is for us to be careful. We've occasionally made mistakes as to certain details, and we have corrected them in the posts whenever we catch them (often flagging the corrections in the updated post). This is the first correction that was significant enough to warrant its own independent post.
But if readers ever see anything that is factually or legally inaccurate in any post on the blog, please do not hesitate to reach out and let me know, and we'll get it fixed right away. Thank you!
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