Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The technology relates to compositions comprising specific ethylene/α-olefin polymer blends.  The parties dispute whether one claim term is indefinite.  After considering whether the court should construe a term challenged as indefinite, it does construe the claim but permits defendant to present its indefiniteness theory to the jury.  The Court declined to construe “comprising” and will instead adopt a standard jury instruction.  Defendant in essence requests the Court to address an infringement issue prematurely.  The court requests supplemental briefing in that the parties’ proposed constructions rely on a phrase “within that interpolymer” which the Court finds unclear.  The Court noted that it is cautious in narrowing the scope of claims based on the prosecution history because the prosecution history represents an ongoing negotiation rather than the final product of the negotiation.