Judge Andrews issued an interesting order on Friday. Based on the docket, it looks like the parties had fully completed the Markman process (disclosures, meet-and-confer, joint claim chart, and joint brief), and had briefed a total of 16 terms. Judge Andrews then canceled the Markman and "dismissed" the briefing:
ORAL ORDER: The parties have submitted a joint claim construction with the request that I construe at least 16 terms including, for example, comprising and patient. I think that if I postpone the Markman hearing, some of these disputes may fall away. Therefore, the Markman hearing scheduled for June 23 is cancelled. The Markman briefing is dismissed. The parties may argue claim construction in their summary judgment and/or Daubert motions. The parties should have their experts offer their opinions in the alternative, so that the expert has an opinion regardless of which claim construction I later choose. Ordered by Judge Richard G. Andrews on 6/2/2023. (nms) (Entered: 06/02/2023)
Applied Biokinetics LLC v. KT Health, LLC, C.A. No. 22-638-RGA-JLH (D. Del. June 2, 2023).
Judge Andrews directed the parties to proceed with alternative constructions until summary judgment. While that may sound impractical, we've discussed before how it was at one point standard practice before at least one Delaware judge.
10 Terms for Markman, Anyone?
Judge Andrews didn't actually say whether or any particular number of terms would have been acceptable here. Our only data point is that 16 is not acceptable.
But, at this point, I feel like the 10-term Markman limit is starting to approach something you could call a "Delaware practice." It traces its roots to an unpublished footnote in a former Chief Judge Sleet opinion, and has been applied (formally or informally) by at least current judges Connolly, Noreika, and Burke.
So, when meeting-and-conferring on claim construction, keep that context in mind, and think twice before submitting (and briefing) arguments on larger numbers of terms.
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