During the trial, the plaintiff, Arthrex, requested that the district court construe the term “proximal end” in certain of the patent-in-suit, U.S. Patent No. 8,821,541 (“the ‘541 patent”). The district court determined that the request for a claim construction was way too late.
The district court began by noting that “Arthrex did not request construction of this term during claim construction, which occurred more than six months ago. Rather, Arthrex requested that the Court construe the term during the Jury Charge Conference– the night before the last day of a five-day trial. ” As explained by the district court, Arthrex based its request on trial testimony from Dr. Alexander Slocum, Defendants’ infringement expert, concerning the plain and ordinary meaning of what he understood “proximal end” to mean. Arthrex then insisted that the district court was required to construe the term because Dr. Slocum’s testimony raised a dispute regarding its meaning. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (“When the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute.”).