Judge Andrews has issued an interesting order regarding an upcoming Markman hearing in Riverbed Technology Inc. v. Silver Peak Systems Inc., C.A. No. 11-484-RGA (D. Del. Oct. 17, 2012). The parties in the case identified 31 disputed terms for construction, and Judge Andrews “note[d] that the parties have no agreed-upon constructions. The ratio of agreed-upon to disputed terms is considerably outside the norm.” Accordingly, he “anticpate[d] that no more than ten terms will be heard at the hearing,” and placed the burden on the parties to identify those terms most in need of construction.
Judge Andrews’ order requires the parties to submit a joint letter “identifying the number of asserted claims, and explaining the importance of construction of the approximately 31 disputed terms to other issues in the case . . . . Each party should also identify, in order of priority, the terms that are most important to the party to have argued at the hearing.” “Depending on what is in the submission,” Judge Andrews warned, “the Court may select the terms to be heard, may narrow the claims at issue, or both, or may postpone the hearing until the parties narrow the claims and terms.”