Markman Hearings For Interferences?

May 2005Intellectual Property Today, Vol. 12, No. 5 at page 25

We had a panel hearing recently on the issue of priority in one of the Trial Section’s new “priority first-preliminary motions later” interferences. The most striking thing about the hearing from my perspective was the parties’ flatly inconsistent interpretations of the count. Each side had put in its priority testimony based on its interpretation of the count, and a great deal of each party’s priority testimony would be irrelevant (because outside the scope of the count) if the panel accepts the other party’s interpretation of the count. This “ships passing in the night” situation got me to thinking, why not have Markman hearings during the administrative phases of interferences?