Meet and Confer Requirement Removed to Prevent Alleged Gaming of Claim Construction Procedure

The court denied defendant's motion to preclude plaintiff from asserting any proposed claim constructions or in the alternative to comply with the court's rules regarding the exchange of proposed terms. "[Plaintiff] has apparently taken the position that no terms need construction. That is [plaintiff's] right. However, to ensure no 'gaming' of the process, the Court does not require the parties to meet and confer on claim construction. They may rely on previously identified (per this Court's rules) intrinsic and extrinsic evidence submitted (if any) in support of their positions. However, [plaintiff] (for instance) may not now offer an alternative construction for claims it stated needed no construction. Similarly, [plaintiff] is limited to the intrinsic and extrinsic evidence it has already proffered (if any) in support of its position. . . . The Court is troubled by assertions that there is a 'gaming' of the system. Let's be clear: [plaintiff] is plaintiff and bears the burden of going first - and showing its cards - more frequently than the defendants. That comes with the territory as plaintiff. The Court assumes good faith and that each party being told now to stick with its stated positions will be neither surprised nor prejudiced by so doing."

Regeneron Pharmaceuticals, Inc. v. Merus BV, 1-14-cv-01650 (NYSD July 22, 2014, Order) (Forrest, J.)