On July 19, 2018, Eastern District of Texas Judge Rodney Gilstrap issued a scathing order in response to a motion by Google LLC to "establish" a procedure for resolving claim construction disputes. Problematically for Google, its motion came nearly two months after the Court issued an order on the procedure for claim construction, three weeks after claim construction briefing began, and only two days before Google filed its responsive claim construction brief. The Court emphasized repeatedly that Google's motion "demonstrates a serious disregard for [the] Court's Rules, Orders, and its authority to control its own docket." The Court also noted that the plaintiff's actions contributed to the problem and ordered both parties and their counsel to appear on August 7, 2018 to show cause why they should not be sanctioned. The Court's order is a cautionary tale for litigants and counsel in all cases about the importance of strictly following a court's rules and procedures, and a reminder that it is the court—not parties or counsel—that controls the case.
The Court's July 19 order was the culmination of the parties' missteps in claim construction. The Court had issued an order on March 22, 2018 setting a Markman hearing, and ordering the parties to confer and advise the Court within two weeks if the parties needed judicial assistance to facilitate claim construction. The parties subsequently submitted a joint report on May 14 identifying four points of disagreement, which the Court resolved in a May 23 order. Nevertheless, the parties identified terms needing construction in their Patent Rule 4-3 joint claim construction statement, but did not present those terms to the Court in claim construction briefing. Instead, Google's motion purported to postpone resolution of the parties' disputes as to those terms, explaining that the remaining terms "will need to be adjudicated at some point" and proposed that the Court "address any remaining disputes at a later time."
Google's motion and the parties' collective conduct drew the Court's ire for violating multiple rules and orders, not to mention the Court's authority to control its docket. However, the Court took particular offense to Google's reference to the Court's duty to resolve claim construction disputes in accordance with the Federal Circuit's O2 Micro decision, calling it a "thinly veiled threat of reversal" and an attempt to "hijack" the Court's claim construction process.
The Court denied the motion and offered Google two options: explicitly waive all non-briefed disputed terms identified in the joint claim construction statement; or elect to withdraw its responsive claim construction brief and refile including argument on all disputed terms. Google filed a response to the Court's order on July 22 electing the latter, and apologizing to the Court. We will find out on August 7 whether Judge Gilstrap accepts Google's apology.
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