Judge Andrews recently granted a request by patent infringement defendants to allow additional claim construction briefs and argument regarding certain terms of a patent-in-suit after a jury trial finding the patent valid and infringed. Interdigital Commc’ns, Inc., et al .v. ZTE Corp., et al., C.A. Nos. 13-09-RGA, 13-10-RGA, Memo. Op. at 3-4 (D. Del. Mar. 6, 2015). Among the terms argued was a term that Judge Andrews had previously construed, adopting the construction proposed by the defendants. Post-trial, however, the defendants argued that construction was confusing and “opened the door for Plaintiffs’ expert . . . to make claim construction arguments to the jury at the . . . trial.” Id. at 9. The plaintiffs argued that their expert’s construction was the correct construction and that the defendants should not be permitted to relitigate claim construction when the defendants’ construction was adopted originally. Id. at 9-10.
At the trial, the defendants objected to the expert’s testimony, and the Court sustained the objection and struck the testimony. Judge Andrews also noted, in his claim construction opinion, that such testimony by the expert is improper and could be sanctionable. Id. at 9-10. Post-trial, however, Judge Andrews adopted the plaintiffs’ construction, noting that “Defendants’ argument that this interpretation is objectionable because the Court struck Dr. Cooklev’s testimony at the ZTE trial misunderstands the Court’s ruling. The testimony was improper because Dr. Cooklev was arguing a question of law to the jury. It was not that the substance of the argument was necessarily objectionable, it was that the argument was being made at all.” Id. at 11-12.