One of the effects of O2 Micro is that the raising new claim construction issues on the eve of a trial is unfortunately not terribly rare. But few cases present a situation like this one where a party's rebuttal expert reports served on the eve of trial triggered a complaint that they raised eleven (11) new claim construction issues, as well as three other broader ones.
In reading the latest opinion by Judge Love in the Chrimar case , I had this mental image of a pitcher throwing a dozen balls at the same, forcing the umpire to make a dozen calls simultaneously.
In general, the motions were denied where they raised arguments that were inconsistent with the Court's prior constructions, with the Court at some points noting that that "time and time again" it had resolved the dispute and yet the expert was continuing to include arguments that had been previously rejected. It did note several times that the fact that an expert was opining using a claim term that term hadn't been identified for construction wasn't a basis for exclusion per se, and that some issues were simply disputes as to whether certain claim elements were met, not claim construction disputes. According this "cross-examination" business was the way the issue should be handled. There were some instances where an additional claim construction might be necessary, and the court (I'm between the words "reluctantly" and "exasperated" here - will update when I decide which fits better) provided a framework for any such challenges.