3Some words about the Judge:
Before we jump into the disputed terms there are some factors that we think could play acontributory role at the margins. First, Judge Denise Casper is a relatively new jurist whowas sworn in to the District Court in December of 2010. Importantly, she is also presiding over the criminal trial of Whitey Bulger, long reputed to be Boston’s mostinfamous gangster. Early signs point to a long and winding course in that case. Is thereanything that can be learned from Judge Casper’s time on the bench that could point tothe way she is likely to approach claim construction? I wouldn’t presume to tell Ropes &Gray or Susman Godfrey how to do their job, but I will point out some observations onJud
ge Casper that you might find interesting:
Judge Casper is young, energetic and very bright (Wesleyan University, Harvard LawSchool). As such, we posit that she will be unlikely to have much use for “receivedwisdom” or doublespeak from counsel and is likely to educate herself about Worlds’inventions. This does not mean we think she will not rely on a “words” approach, as thatapproach is often the most exacting. For jurists it provides more certainty than trying tograsp advanced technology in patent specifications that reasonable parties can debate adnauseam. That said, it is our expectation that she will have an understanding of the scopeof the invention (as is proper) when determining claim language.
Judges in Markman hearings are supposed to construe (interpret) the claims in the patents. This is their job. They are also supposed to construe the claims in such a way asto uphold their validity whenever possible. Activision has invited Judge Casper to findthat a number of terms, which seem to have fairly plain meanings (both as a general matter and in the context of the patents), are in fact hopelessly ambiguous and thus “indefinite.”(If a claim contains words that are “indefinite” then the claim is per se invalid.) We do notexpect Judge Casper to throw up her hands and say she does not know what the wordsmean.
She seems focused on counsel being efficient. She writes in an interesting columnreflecting on her first year on the bench that attorneys who appear before her should notassume she knows the intricacies of a given subject matter. She also makes clear that shewill let those arguing in front of her know where they may begin with respect to her understanding of what has been briefed.
4. She appears willing to be exactingly thorough in instances where another jurist mayrely more fully on a fellow judge’s opinion. We believe this reflects what we have statedin number (1) above. An example of this may be found in her approach to an opinion inthe current Whitey Bulger trial. An excerpt from an article on the case follows: