It won’t be the most interesting thing you’ll see come out of Waco this week (Sic ’em Bears!), but a 34-page Markman can’t be all bad.
When can you use a rebuttal expert in the claim construction process? This order gives a few clues.
Judge Albright recently issued an amended claim construction order that resolved a dispute between the parties regarding whether the plaintiff’s infringement contentions were consistent with the Court’s constructions.
Following a Markman hearing and supplemental briefing, the Court issued this opinion finding four of the asserted claims indefinite.
Six up, six down.
The attached claim construction order contains ten constructions. Unlike the last order posted on, where all four were plain and ordinary meaning, here only four of the ten are, including one rejection of an indefiniteness claim.
Some Markman hearings are just more memorable than others. Mine Friday in Judge Albright’s court involved a missing patent, technology that wouldn’t work, phone screen sizes, and a search for magic words that rivalled Jonathan’s frantic search from the Egyptian Book of the Dead in The Mummy (the good one). So Hootash im Ahmenophus everybody, and let me explain what I mean.
Practitioners in the Eastern District of Texas are familiar with the practice of some judges to provide preliminary claim constructions shortly before a hearing, or in some cases shortly after. The latter procedure was one followed by Judge Albright in this case – sort of.
I challenge you to find a happier 16 year old than this one, who spent the first day of his summer vacation getting some stick time in a World War II trainer, as reported by the local paper. He was, in fact, smiling as broadly as I expect the defendants were when they got Judge Kernodle’s 122 page claim construction order in this 11 patent case raising over 30 terms, which addressed their indefiniteness arguments. They did pretty well.