It was Judge Longobardi in Delaware who I recall asking: ‘how many times do you patent attorneys expect me to try your case?’ What recalled that was the Magistrate’s R&R preliminarily construing claims terms for the District Judge to use on a preliminary injunction motion in Symbol Technol. v. Janam Technol., 1:08CV340-JJF (D. Del. 12/1/2008). Referral to the Magistrate for a preliminary Markman recommendation, followed by Rule 72 objections to District Judge, then final claims interpretations (pretrial or on JMOL), leading to final CAFC review, possibly means the disputed claim terms may be construed four times. Having four passes at one set of issues, to my way of thinking, is the Mark IV procedure, open to criticism about the time and cost for patentee’s to assert duly-granted patent rights. To auto enthusiasts, Mark IV recalls heady days @1970, when less than ten grand would acquire either a carefree Austin-Healey Sprite Mark IV, or the elegant authority of the Lincoln Mark IV (with a 7L engine and those novel intermittent wipers). Today, ten thousand is not nearly enough to get through one week in a patent infringement suit. The opening pages of the Magistrate’s Symbol report chart out the extended pre-pretrial period. A June order set a December hearing date for a then-pending Rule 65 motion, and then in July, the “parties [were] requesting preliminary claim construction in advance of preliminary injunction hearing,” and for that, theMarkman issues went to the Magistrate. This referral procedure may provide more fairness and a more robust record than when there is a rush to file and be heard on a motion for preliminary restraints, but the pendency and disposition of the issues is prolonged. How many times can a court act de novo? Also, in the time that the Magistrate makes a preliminary claims interpretation the case may be advancing, but those recommendations are “subject to change” at any time until final judgment, or earlier by an interlocutory appeal. If all possibilities for reinterpretations ensue, e.g., two CACF trips, then it may need to be renamed the Mark VII procedure. When a client urges instant action to get a preliminary injunction, consider the Mark IV.

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