In a recent Order, Judge Richard G. Andrews denied plaintiff’s motion for entry of judgment with respect to the court’s claim construction. Buyerleverage Email Solutions, LLC v. SBC Internet Services, Inc., et al., C.A. No. 11-645-RGA (D. Del. Jan. 24, 2014). As Judge Andrews explained, the parties had requested that “about 14 terms” be construed, and Judge Andrews construed “three critical terms” from the 14. Id. at 1. Plaintiff thereafter determined that the constructions were “harmful enough to its case that it wanted to concede and go the Federal Circuit.” Id. The parties disagreed as to what Judge Andrews had decided and “(perhaps) what was necessary to put the case into a posture where the Federal Circuit would accept an appeal.” Id.
Judge Andrews noted that the Federal Circuit has “constitutional concerns about reviewing claim constructions.” Id. Judge Andrews further explained that in other cases parties “managed to stipulate to a final judgment” if one party thought the claim construction needed to be appealed. Id. He found that practice different from the instant case, where it seemed that plaintiff’s “proposal beg[ged] the Federal Circuit to remand the case for clarification.” Id. at 1-2. While acknowledging that the parties “think the most economical and/or efficient way to proceed is with a visit to the Court of Appeals,” Judge Andrews concluded that it would “not be responsible of [him] to enter any of the pending proposals for judgment” and denied plaintiff’s motion. Id. at 2.
In a footnote, Judge Andrews provided some guidance as to when he may enter final judgment: “If the parties can stipulate to a judgment, as indicated above, I would probably grant that. If Plaintiff submits a motion for entry of judgment that explicitly states that it will agree to dismiss its case if the Court of Appeals does not have a sufficient record on which to make its review, I would probably grant that too. Or I can extend the schedule, the parties can finish discovery, including resolution of pending discovery disputes, do expert reports, and summary judgment motions. There are probably other alternatives that the parties can come up with.” Id. at 2 n.4