The Importance of Contentions?

It’s a busy holiday week, so we’ll give you a quick tip:

Last week, Judge Albright held a hearing on Dell Inc.’s challenge to Plaintiff WSOU Investments, LLC’s preliminary infringement contentions. Dell challenged Plaintiff’s infringement contentions as failing to provide the notice necessary for Dell to understand Plaintiff’s infringement theories. I won’t get into the merits (as I am counsel on the case) – but I did want to point out a very interesting statement Judge Albright made during the hearing. Specifically, Judge Albright expressed his views concerning how infringement and invalidity contentions fit into the Markman process. Spoiler alert – Judge Albright says they don’t. 

Specifically, Judge Albright stated: “my belief is that . . . the infringement contentions, invalidity contentions are not part of the Markman process. . . . I just want everyone to understand that from my perspective . . . , the need for infringement contentions or invalidity contentions to assist someone in coming up with what they believe a Markman claim term should mean . . . — I disagree with that. I think I’m supposed to be doing the claim construction as a matter of law based on what the claim says and the intrinsic evidence which is agnostic to whatever the products are that are out there for the infringement contentions. So I just wanted everyone to understand that’s my philosophy as we move forward.” 

Judge Albright did clarify that “it is absolutely fair for the defendants to have a clear understanding” of a plaintiff’s infringement contentions (and by implication, presumably also for plaintiffs to similarly understand invalidity contentions). 

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