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Chief Judge Sleet: Claim Construction Warning in Edwards Lifesciences

By Karen E. Keller, Andrew A. Lundgren et al.

Recently, in Edwards Lifesciences AG v. Corevalve, Inc., C.A. No. 8-91-GMS (D. Del. February 7, 2011), Chief Judge Sleet ruled on various post-trial motions by CoreValve and Edwards. the Court denied CoreValve's Renewed JMOL motion, stating that CoreValve was merely attempting to re-litigate a claim construction after the Court had already ruled on it. The Court stated that

Since attempts to relitigate claim construction have become increasingly prevalent, however, the court feels it necessary to lay out the history behind CoreValve's efforts to revisit claim construction on this issue. The court's claim construction order specifically rejected CoreValve's proposed constructions . . . . CoreValve did not file a motion for reargument during the ten day time frame [now 14 day time frame] imposed under Local Rule 7.1.5. Once that period passed, the claim construction phase of the pre-trial process was complete."

Id. at 12-13. The Court pointed out that CoreValve had then brought up a related issue in a letter request to file a motion for summary judgment, and again in a motion for clarification. The Court ultimately clarified the order prior to trial, but the issue came up again at trial and then in the post-trial briefing.

Chief Judge Sleet then issued a stern warning for future litigants:

When parties repeatedly attempt to revisit claim construction months after the court issues its Markman order, it wastes the court's time and undermines the court's ability to resolve legal issues in an efficient and timely manner. Moreover, such efforts are bound to fail, since counsel on both sides are well aware that this court simply will not permit the sort of wholesale relitigation of a disputed claim term that CoreValve has sought (and sought and sought again). The problem is even more serious where, as here, the party presents a witness who testifies and provides an interpretation of [a] claim term that is plainly at odds with the court's claim construction order. In addition to violating the Federal Circuit's repeated directives that claim construction issues not be brought up at trial, presenting such testimony creates the potential for jury confusion. Such conduct is simply unacceptable in light of trial counsels' duties as officers of the court. . . . If a party disagrees with one or more of the court's claim constructions, the appropriate course is for the party to make its record during the Markman phase and pursue that issue on appeal. If appropriate, the party may also file a motion for reargument under Local Rule 7.1.5, bearing in mind that such motions are only "sparingly granted." . . . In the future, parties who engage in such conduct may face sanctions.

Id. at 15-16.

Edwards Lifesciences AG v. Corevalve, Inc., C.A. No. 8-91-GMS (D. Del. February 7, 2011)

Full post as published by Delaware IP Law Blog on February 16, 2011 (boomark / email).