Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 1 of 22 PageID #: 12256
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
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`
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`C.A. No. 1:13-cv-01674-RGA
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`Consolidated
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`REDACTED VERSION D.I. 372
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`
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`
`
`C.A. No. 1:14-cv-00422-RGA
`
`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
`
`Plaintiffs,
`
`v.
`WATSON LABORATORIES, INC. and
`ACTAVIS LABORATORIES UT, INC.,
`
`
`Defendants.
`
`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
`
`Plaintiffs,
`
`v.
`PAR PHARMACEUTICAL, INC., and
`INTELGENX TECHNOLOGIES CORP.
`
`
`Defendants.
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`PROPOSED SUPPLEMENTAL JOINT PRETRIAL ORDER
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 2 of 22 PageID #: 12257
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`
`
`
`Mary W. Bourke (#2356)
`Dana K. Severance (#4869)
`Daniel M. Attaway (#5130)
`WOMBLE CARLYLE SANDRIDGE & RICE, LLP
`222 Delaware Avenue, Suite 1501
`Wilmington, DE 19801
`Telephone: (302) 252-4320
`Facsimile: (302) 252-4330
`mbourke@wcsr.com
`dseverance@wcsr.com
`dattaway@wcsr.com
`
`Counsel for Plaintiffs
`
`
`OF COUNSEL:
`
`Daniel A. Ladow
`James M. Bollinger
`Timothy P. Heaton
`J. Magnus Essunger
`TROUTMAN SANDERS LLP
`875 Third Avenue
`New York, NY 10022
`Telephone: (212) 704-6000
`Facsimile: (212) 704-6288
`Daniel.ladow@troutmansanders.com
`James.bollinger@troutmansanders.com
`Timothy.heaton@troutmansanders.com
`Magnus.essunger@troutmansanders.com
`
`Charanjit Brahma
`TROUTMAN SANDERS LLP
`580 California Street
`Suite 1100
`San Francisco, CA 94104
`Telephone: (415) 477-5700
`Facsimile: (415) 477-5710
`charanjit.brahma@troutmansanders.com
`
`Robert E. Browne, Jr.
`TROUTMAN SANDERS LLP
`55 West Monroe Street
`Suite 3000
`Chicago, IL 60603
`
`
`
`Steven J. Fineman (#4025)
`Katharine C. Lester (#5629)
`RICHARDS LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19807
`Telephone: (302) 651-7700
`Facsimile: (302) 651-7701
`fineman@rlf.com
`lester@rlf.com
`
`
`Counsel for Defendants Par Pharmaceutical,
`Inc. and IntelGenx Technologies Corp.
`
`OF COUNSEL:
`
`Daniel G. Brown
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022
`Telephone: (212) 906-1200
`Facsimile: (212) 751-4864
`daniel.brown@lw.com
`
`James K. Lynch
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`jim.lynch@lw.com
`
`Terry Kearney
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 92025
`Telephone: (650) 328-4600
`Facsimile: (650) 463-2600
`Email: terry.kearney@lw.com
`
`Jennifer Koh
`B. Thomas Watson
`LATHAM & WATKINS LLP
`
`

`

`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 3 of 22 PageID #: 12258
`
`12670 High Bluff Drive
`San Diego, CA 92130
`Telephone: (858) 523-5400
`Facsimile: (858) 523-5450
`jennifer.koh@lw.com
`thomas.watson@lw.com
`
`Emily C. Melvin
`Brenda L. Danek
`LATHAM & WATKINS LLP
`330 North Wabash Avenue
`Suite 2800
`Chicago, IL 60611
`Telephone: (312) 876-7700
`Facsimile: (312) 993-9767
`emily.melvin@lw.com
`brenda.danek@lw.com
`
`
`Counsel for Defendants Par Pharmaceutical
`Inc. and IntelGenx Technologies Corp.
`
`
`
`Telephone: (312) 759-1920
`Facsimile: (312) 759-1939
`robert.browne@troutmansanders.com
`
`Puja Patel Lea
`TROUTMAN SANDERS LLP
`600 Peachtree Street, NE
`Suite 5200
`Atlanta, GA 30308
`Telephone: (404) 885-3000
`Facsimile: (404) 885-3900
`puja.lea@troutmansanders.com
`
`Jeffrey B. Elikan
`Jeffrey Lerner
`Erica N. Andersen
`Ashley Kwon
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth St. NW
`Washington, DC 20001
`202.662.6000
`jelikan@cov.com
`jlerner@cov.com
`eandersen@cov.com
`akwon@cov.com
`
`
`Counsel for Plaintiff Reckitt Benckiser
`Pharmaceuticals Inc. & RB Pharmaceuticals
`Limited
`
`James F. Hibey
`Timothy C. Bickham
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, NW
`Washington DC 20036
`Telephone: (202) 429-3000
`Facsimile: (202) 429-3902
`jhibey@steptoe.com
`tbickham@steptoe.com
`
`David L. Hecht
`Cassandra A. Adams
`STEPTOE & JOHNSON LLP
`1114 Avenue of the Americas
`
`
`
`

`

`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 4 of 22 PageID #: 12259
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`
`
`New York, NY 10036
`Telephone: (212) 506-3905
`Facsimile: (212) 506-3950
`dhecht@steptoe.com
`cadams@steptoe.com
`
`Counsel for Plaintiff MonoSol Rx, LLC
`
`
`
`OF COUNSEL:
`
`Melinda K. Lackey
`WINSTON & STRAWN LLP
`1111 Louisiana, 25th Floor
`Houston, TX 77002
`Telephone: (713) 651-2600
`Facsimile: (713) 651-2700
`mlackey@winston.com
`
`Stephen Smerek
`David P. Dalke
`Jason C. Hamilton
`WINSTON & STRAWN LLP
`333 S. Grand Ave., Suite 3800
`Los Angeles, CA 90071
`Telephone: (213) 615-1700
`Facsimile: (213) 615-1750
`ssmerek@winston.com
`ddalke@winston.com
`
`
`
`
`
`John C. Phillips, Jr. (#110)
`Megan C. Haney (#5016)
`PHILLIPS, GOLDMAN & SPENCE, P.A.
`1200 North Broom Street
`Wilmington, DE 19806
`Telephone: (302) 655-4200
`Facsimile: (302) 655-4210
`jcp@pgslaw.com
`mch@pgslaw.com
`
`Counsel for Defendants Watson Laboratories,
`Inc. and Actavis Laboratories UT, Inc.
`
`OF COUNSEL:
`
`George C. Lombardi
`Michael K. Nutter
`Tyler G. Johannes
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`glombard@winston.com
`mnutter@winston.com
`tjohannes@winston.com
`
`
`
`
`
`Counsel for Defendants Watson Laboratories,
`Inc. and Actavis Laboratories UT, Inc.
`
`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 5 of 22 PageID #: 12260
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`TABLE OF CONTENTS
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`
`Page
`
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`Supplemental Nature of the Case and Pleadings (L.R. 16.3(1)) ........................................ 1
`I.
`Supplemental Admitted Facts (L.R. 16.3(3))..................................................................... 1
`II.
`Supplemental Disputed Facts (L.R. 16.3(4)) ..................................................................... 2
`III.
`Supplemental Issues of Law (L.R. 16.3(5)) ....................................................................... 2
`IV.
`Supplemental Exhibits (L.R. 16.3(6)) ................................................................................ 3
`V.
`Supplemental Witness Statements (L.R. 16.3(7)) .............................................................. 7
`VI.
`VII. Brief Supplemental Statement of Intended Proofs (L.R. 16.3(8-9)) ................................ 10
`VIII. Amendments to Pleadings (L.R. 16.3(11)) ...................................................................... 11
`IX.
`Certification of Settlement Discussions (L.R. 16.3(12)) ................................................. 11
`X.
`Miscellaneous Issues (L.R. 16.3(13)) .............................................................................. 11
`A.
`In Limine Motions ............................................................................................... 11
`B.
`Expected Duration and Scope of Trial ................................................................. 11
`C.
`Type of Trial ........................................................................................................ 12
`D.
`Order of Proof ...................................................................................................... 12
`E.
`Protective Order and Corporate Representatives in Courtroom .......................... 13
`XI. Order To Control Course of Action ................................................................................. 13
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`
`-i-
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 6 of 22 PageID #: 12261
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`Plaintiffs Reckitt Benckiser Pharmaceuticals Inc. (“RBP”), RB Pharmaceuticals Limited
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`(“RBP UK”), and MonoSol Rx, LLC (“Monosol”) (collectively, “Plaintiffs”) and Defendants Par
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`Pharmaceutical, Inc. and IntelGenx Technologies Corp. (“Par”), and Watson Laboratories, Inc.
`
`and Actavis Laboratories UT, Inc. (“Watson”) (collectively, “Defendants”) submit the following
`
`supplement to the Joint Pretrial Order filed on October 16, 2015 (D.I. 339–341), as amended on
`
`November 2, 2015 (D.I. 353) (“Original Joint Pretrial Order” or “Original JPTO”). The Original
`
`JPTO, in conjunction with this supplement, will be used to govern the December trial.
`
`I.
`
`Supplemental Nature of the Case and Pleadings (L.R. 16.3(1))
`
`1.
`
`A consolidated trial took place on November 3–4, 2015 addressing: (1) Plaintiffs’
`
`infringement case against the Watson Defendants on U.S. Patent No. 8,017,150 (“the ʼ150
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`Patent”) and (2) Defendants’ invalidity case as to the ʼ150 Patent and U.S. Patent No. 8,603,514
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`(“the ’514 Patent”). Pursuant to the Court’s Trial Scheduling Order of April 2, 2015 (D.I. 240);
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`Plaintiffs’ election of April 16, 2015 (D.I. 258); the Court’s October 30, 2015 Order After
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`Pretrial Conference (D.I. 352); and further discussion at the November trial (Tr. 718:8–721:3),
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`the following issues will be tried in a consolidated proceeding on December 17–18,
`
`2015:(1) Plaintiffs’ infringement case against Par and Watson on the ’514 Patent and U.S. Patent
`
`No. 8,475,832 (“the ʼ832 Patent”); (2) Plaintiffs’ infringement case against Par on the ’150
`
`Patent; and (3) Defendants’ invalidity case as to the ’832 Patent.
`
`II.
`
`Supplemental Admitted Facts (L.R. 16.3(3))
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`2.
`
`The parties previously stipulated to the Admitted Facts attached to the October
`
`16, 2015 JPTO (D.I. 339–341), and supplemented those facts on November 2, 2015 (D.I. 353).
`
`The previously admitted facts require no proof at trial and are part of the evidentiary record in
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`this case. Additional stipulated facts are attached hereto as Exhibit 1, and begin with Fact No.
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`224. These additional stipulated facts require no proof at trial and will become part of the
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`1
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`

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`
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`evidentiary record in this case. The parties are currently negotiating additional stipulated facts
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`and may submit a supplemental to Exhibit 1 prior to trial.
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`III.
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`Supplemental Disputed Facts (L.R. 16.3(4))1
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`3.
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`Plaintiffs’ statement of the issues of fact that remain to be litigated as to Plaintiffs’
`
`allegations of infringement by Par is attached hereto as Exhibit 2. For avoidance of doubt,
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`Plaintiffs dispute and reserve all rights to introduce evidence and argument rebutting the
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`statements set forth in Defendants’ Statements of Facts and Defendants’ Statements of Issues of
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`Law Remaining to be Litigated (both those attached hereto and those attached to the Original
`
`JPTO).
`
`4.
`
`Par’s statement of the issues of fact that remain to be litigated as to Plaintiffs’
`
`allegations of infringement is attached hereto as Exhibit 3. For avoidance of doubt, Defendants
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`dispute and reserve all rights to introduce evidence and argument rebutting the statements set
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`forth in Plaintiffs’ Statements of Facts that Remain to be Litigated, and Statements of Issues of
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`Law Remaining to be Litigated (both those attached hereto and those attached to the Original
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`JPTO).
`
`IV.
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`Supplemental Issues of Law (L.R. 16.3(5))2
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`5.
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`Plaintiffs’ statement of issues of law which remain to be litigated as to Plaintiffs’
`
`allegations of infringement by Par is attached as Exhibit 4.
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`6.
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`Par’s statement of issues of law which remain to be litigated as to Plaintiffs’
`
`allegations of infringement by Par is attached as Exhibit 5.
`
`
`
`
`1 The parties’ Statement of Disputed Facts as to all other issues is attached to the Original JPTO
`at Exhibits 2-3.
`2 The parties’ Statement of Issues of Law as to all other issues is attached to the Original JPTO at
`Exhibits 4-5.
`
`2
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 8 of 22 PageID #: 12263
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`
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`V.
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`Supplemental Exhibits (L.R. 16.3(6))
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`7.
`
`The parties’ Joint Trial Exhibit list, which lists exhibits that were pre-admitted in
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`advance of the trial on November 3–4, 2015 (D.I. 354), is attached as Exhibit 6.3 The parties
`
`have agreed that to streamline witness examinations at trial, it would be helpful for certain
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`additional exhibits to be pre-admitted. Therefore, prior to trial, the parties will submit a revised
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`version of Exhibit 6 that includes supplemental Joint Trial Exhibits, beginning at JTX-253.
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`8.
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`Plaintiffs’ Trial Exhibit list, as submitted with the Original JPTO, including
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`Defendants’ objections, and amended in light of the Joint Trial Exhibit Lists and to indicate those
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`exhibits that have been admitted into evidence, is attached hereto as Exhibit 7. It includes
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`supplemental trial exhibits, beginning at PTX 1001.
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`9.
`
`Defendants’ Trial Exhibit List, as submitted with the Original JPTO, including
`
`Plaintiffs’ objections, and amended in light of the Joint Trial Exhibit Lists and to indicate those
`
`exhibits that have been admitted into evidence, is attached hereto as Exhibit 8. It includes
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`supplemental trial exhibits, beginning at DTX 1320.
`
`10.
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`Plaintiffs’ trial exhibits will be identified with PTX numbers. Defendants’ trial
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`exhibits will be identified with DTX numbers. Joint trial exhibits will be identified with JTX
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`numbers as shown on Exhibit 6.
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`11.
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`Each party reserves the right to offer exhibits set forth on any other party’s exhibit
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`list, even if not set forth on its own exhibit list. All objections to such exhibits are preserved,
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`regardless of whether such exhibits also appear on the objecting party’s exhibit list.
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`12.
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`Any exhibit, once admitted at trial, may be used equally by any party for any
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`proper purpose, subject to any limitations as to its admission into evidence. The listing of a
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`3 Per the Court’s instruction at the October 29, 2015 Pretrial Conference, a pre-admitted exhibit
`will not be part of the ultimate trial record in this case unless it is introduced through a witness
`(either live or by deposition). October 29, 2015 Transcript of Pretrial Conference at 13:18-14:6.
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`3
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`

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`document on a party’s list is not an admission that such document is relevant or admissible when
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`offered by the opposing party for the purpose that the opposing party wishes to admit the
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`document. Each party reserves the right to object to the relevance or admissibility of any
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`evidence offered by another party, at the time such evidence is offered, in view of the specific
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`context in which such evidence is offered.
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`13.
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`The parties reserve the right to offer exhibits not set forth in their exhibit lists for
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`purposes of impeachment or cross-examination.
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`14.
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`Any document not listed in Exhibits 6-8 above and not offered for purposes of
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`impeachment or cross-examination, will be precluded from trial, absent good cause shown.
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`15.
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`The demonstratives the parties intend to use at trial do not need to be described on
`
`their respective lists of trial exhibits. Plaintiffs’ demonstratives will be identified with PDX
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`numbers. Defendants’ demonstratives will be identified with DDX numbers.
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`16.
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`The parties have agreed to the following procedures regarding pre-trial
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`exchanges:
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`a. The parties shall exchange by electronic mail and/or electronic media (for large
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`exhibits and any videos or animations to be offered) lists of any exhibits and
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`copies of any demonstrative exhibits (except for demonstrative exhibits that will
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`be created live in the courtroom) that each party intends to use in its supplemental
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`opening statement by 11:00 am one day prior to the start of trial as to both
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`exhibits and demonstratives. A party in receipt of these materials shall inform the
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`producing party of any objections to those materials by 7:30 p.m. ET one calendar
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`day before such materials are to be used at trial. The parties shall meet and confer
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`to resolve those objections before trial resumes on the following day.
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`4
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 10 of 22 PageID #: 12265
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`b. The party that bears the burden of proof on an issue at trial shall produce to the
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`opposing party by electronic mail and/or electronic media (for large exhibits and
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`any videos or animations to be offered) the following materials with respect to
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`that issue by 7:30 p.m. ET two calendar days before such materials are to be used
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`at trial:
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`i. A list of the witnesses that the party will call to testify live or by
`
`deposition on that day, in the order that they will be called;
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`ii. A list of the exhibits that the party will use during the direct examination
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`of each witness identified by exhibit number;
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`iii. A copy of each demonstrative exhibit that the party will use during the
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`direct examination of each witness (except for demonstrative exhibits that
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`will be created live in the courtroom); and
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`iv. A good faith estimate of when the party intends to conclude its case-in-
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`chief.
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`A party in receipt of the above materials shall inform the producing party of any
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`objections to those materials by 7:30 p.m. ET one calendar day before such
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`materials are to be used at trial. The parties shall meet and confer to resolve those
`
`objections before trial resumes on the following day.
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`c. The party that must rebut an issue at trial shall produce to the opposing party by
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`electronic mail and/or electronic media (for large exhibits and any videos or
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`animations to be offered) the following materials with respect to that issue by
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`7:30 p.m. ET one calendar day before such materials are to be used at trial:
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`5
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 11 of 22 PageID #: 12266
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`i. A list of the rebuttal witnesses that the party will call to testify live or by
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`deposition on that day, in the order that they will be called;
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`ii. A list of the exhibits that the party will use during the direct examination
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`of each rebuttal witness identified by exhibit number; and
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`iii. A copy of each demonstrative exhibit that the party will use during the
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`direct examination of each rebuttal witness (except for demonstrative
`
`exhibits that will be created live in the courtroom)
`
`A party in receipt of the above materials shall inform the producing party of any
`
`objections to those materials by 10:30 p.m. ET one calendar day before such
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`materials are to be used at trial. The parties shall meet and confer to resolve those
`
`objections before trial resumes on the following day.
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`17.
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`Each demonstrative exhibit shall disclose to the other parties on the face of the
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`demonstrative exhibit all trial exhibits that form the basis of the demonstrative exhibit.
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`18.
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`Demonstratives to be used on cross-examination are not required to be provided
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`to the other side in advance.
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`19.
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`Any exhibit identified on a party’s exhibit list and not objected to is deemed to be
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`admissible and may be entered in evidence by the party, except that nothing herein shall be
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`construed as a stipulation or admission that the document is entitled to any weight in deciding the
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`merits of the case.
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`20.
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`The parties stipulate to the authenticity of all exhibits identified on each party’s
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`list, except where specifically indicated with specific reasons for the objection noted. Any
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`objection to a document’s authenticity must be made in this pretrial order.
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`6
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 12 of 22 PageID #: 12267
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`21.
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`Legible copies of United States patents and the contents of United States patents,
`
`as well as their corresponding prosecutions, may be offered and received in evidence in lieu of
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`certified copies thereof, subject to all other objections which might be made to the admissibility
`
`of certified copies.
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`VI.
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`Supplemental Witness Statements (L.R. 16.3(7))
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`22.
`
`Plaintiffs’ list of witnesses they may call at the December 17–18 trial is attached
`
`hereto as Exhibit 9.
`
`23.
`
`Plaintiffs’ supplemental deposition designations, relating to Plaintiffs’ allegations
`
`of infringement by Par, along with Par’s objections thereto and counter-designations, are
`
`attached hereto as Exhibit 10.
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`24.
`
`Defendants’ list of witnesses they may call at the December 17–18 trial is
`
`attached hereto as Exhibit 11.
`
`25.
`
`Par’s supplemental deposition designations, relating to Plaintiffs’ allegations of
`
`infringement by Par, along with Plaintiffs’ objections thereto and counter-designations, are
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`attached hereto as Exhibit 12.
`
`26.
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`Plaintiffs’ Statement: Plaintiffs object to all designations as to any witness called
`
`live at trial, as improper designation of a witness who is not unavailable (FRCP 32(a)(4) and
`
`FRE 802); and in the event that Defendants later indicate that they will use some but not all of
`
`their designations as originally served on Sept. 3, 2015 and/or November 13, 2015 for any
`
`particular witness, Plaintiffs reserve the right to include removed portions of Defendants’
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`designations in their counter-designations; and Plaintiffs reserve the right to revise any of these
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`preliminary counter-designations, by either removing from or adding to any list or by asserting
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`additional objections, if appropriate.
`
`7
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`

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`Case 1:13-cv-01674-RGA Document 384 Filed 12/21/15 Page 13 of 22 PageID #: 12268
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`27.
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`Defendants’ Statement: Defendants object to all designations as to any witness
`
`called live at trial, as improper designation of a witness who is not unavailable (FRCP 32(a)(4)
`
`and FRE 802); and in the event that Plaintiffs later indicate that they will use some but not all of
`
`their designations as originally served on Sept. 3, 2015 and/or November 13, 2015 for any
`
`particular witness, Defendants reserve the right to include removed portions of Plaintiffs’
`
`designations in their counter-designations; and Defendants reserve the right to revise any of these
`
`preliminary counter-designations, by either removing from or adding to any list or by asserting
`
`additional objections, if appropriate.
`
`28.
`
`Any witness not listed in Exhibits 9-12 above will be precluded from trial absent
`
`good cause shown. Such good cause shall include testimony required to authenticate any
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`documents subject to an authenticity objection.
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`29.
`
`For good cause shown, limited supplementation of deposition designations will be
`
`permitted through the close of trial unless the opposing party will be unfairly prejudiced by such
`
`supplementation. The opposing party shall have the right to counter-designate. Supplementation
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`to designate testimony for purposes of identification or authentication of a document shall satisfy
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`the requirement of good cause.
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`30.
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`To the extent that deposition designations or counter-designations are admitted
`
`into evidence, they must either be played by video or read in open court. If a party opts to
`
`introduce deposition testimony, any counter-designation of that same witness’s testimony must
`
`be submitted in the same medium, and the testimony designated by both parties will be played or
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`read consecutively in the sequence in which the testimony was originally given at deposition. To
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`the extent deposition designations are read or played in open court, each party will be charged
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`the time taken to read or play its designations, as measured by the proportion of the number of
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`lines of testimony for its designations to the total number of lines of testimony read or played.
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`31.
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`The parties each reserve the right to offer deposition testimony designated by any
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`other party (whether as a designation or a counter-designation) even if not separately listed on its
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`own deposition designation list, subject to evidentiary objections.
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`32.
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`Each party will provide to the other parties the name and order of any witness that
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`it expects to call to testify by deposition testimony (regardless of burden of proof) by 7:30 p.m.
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`two calendar days before the designations are to be used at trial, as well as: a list of the specific
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`deposition designations, by line and page number, of each deposition transcript that the party will
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`use that day, including an identification of whether the designations will be played by video or
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`read into the record.
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`33.
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`Objections to any deposition designations shall be provided by 7:30 p.m. the day
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`before the deposition is expected to be read or played by video. The party offering the deposition
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`testimony designations shall then provide a “clip report” showing videotape run-times for both
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`the deposition designations and counter-designations; and the parties shall meet and confer
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`before trial begins the next day in an attempt to resolve any objections to the deposition
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`designations.
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`34.
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`Deposition testimony shall be identified by specific page and line citations both
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`when the party that expects to use the testimony at trial identifies it to the other parties and when
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`any of the other parties provide objections to the testimony.
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`35.
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`If during the revised deposition designation process, either party cancels the use
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`of a deposition designation that it previously made, the other party may adopt that designation or
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`a portion of that designation for its own purposes. The canceling party reserves the right to object
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`to the use of the deposition testimony by the adopting party. Further, any counter-designation
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`listed in the Pretrial Order and/or Supplemental Joint Pretrial Order may be used in response to
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`any designation by the designating party of the same witness, and counter-designations need not
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`be listed separately for each line of testimony for which it may be used in response.
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`36.
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`Any objections to any trial exhibit or demonstrative that is maintained following
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`any meet and confer process may be taken up with the Court prior to the opening or the witness’s
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`testimony or as otherwise directed by the Court.
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`37.
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`Any deposition testimony to be used at trial may be used whether or not the
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`transcripts of such deposition have been signed and filed.
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`38.
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`The listing of a deposition designation does not constitute an admission as to the
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`admissibility of the testimony, nor is it a waiver of any applicable objection.
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`39.
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`Plaintiffs’ experts’ curricula vitae were submitted prior to the November trial, and
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`are attached to the original JPTO at Exhibit 10a-10g.
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`40.
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`Defendants’ experts’ curricula vitae, except those related to Plaintiffs’ allegations
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`of infringement by Par, are attached to the original JPTO at 11a-11f.
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`41.
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`Par’s experts’ curricula vitae or resumes relating to Plaintiffs’ allegations of
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`infringement by Par, are attached hereto as Exhibits 13a-13c.
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`VII.
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`Brief Supplemental Statement of Intended Proofs (L.R. 16.3(8-9))4
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`42. With respect to Plaintiffs’ allegations of infringement by Par, Plaintiffs expect to
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`offer the supplemental proofs set forth in Exhibit 14.
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`43. With respect to Par’s rebuttal of Plaintiffs’ allegations of infringement, Par
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`expects to offer the supplemental proofs set forth in Exhibit 15.
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`4 The parties’ Statement of Intended Proofs as to all other issues is attached to the Original JPTO
`at Exhibits 12, 13.
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`VIII.
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`Amendments to Pleadings (L.R. 16.3(11))
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`44.
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`The parties do not offer any amendments to the pleadings at this time.
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`IX.
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`Certification of Settlement Discussions (L.R. 16.3(12))
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`45.
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`Plaintiffs and Defendants Par Pharmaceutical, Inc. and IntelGenx Technologies
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`Corp. certify that they have engaged in a good faith effort to explore the resolution of the
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`controversy between them by settlement. A settlement has not yet been reached.
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`46.
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`Plaintiffs and Defendants Watson Laboratories, Inc. and Actavis Laboratories UT,
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`Inc. certify that they have engaged in a good faith effort to explore the resolution of the
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`controversy between them by settlement. A settlement has not yet been reached.
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`X.
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`Miscellaneous Issues (L.R. 16.3(13))
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`A.
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`47.
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`In Limine Motions
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`Plaintiffs’ in limine motions, along with Par’s oppositions thereto and Plaintiffs’
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`replies, are set forth in Exhibits 16a-16c and 17a-17c.
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`B.
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`48.
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`Expected Duration and Scope of Trial
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`Trial is scheduled to begin on December 17, 2015 and to last two (2) days or 14
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`hours total. The time will be split evenly between Plaintiffs and Defendants. Time that a party is
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`presenting opening statements, examining or cross-examining witnesses, presenting evidence by
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`reading or playing a deposition transcript, or otherwise presenting argument on behalf of a party
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`will be counted as the time of that party.
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`49.
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`Notwithstanding the foregoing, where an objection to the examination or cross
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`examination of a witness takes more than 1 minute to resolve, then the full time taken to resolve
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`the objection shall be charged to the objecting party if the objection is overruled, and the
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`examining party if the objection is sustained.
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`50.
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`Plaintiffs and Par are currently addressing the scope of Plaintiffs’ infringement
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`allegations against Par regarding the ’150 patent to be presented at the December trial.
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`C.
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`51.
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`D.
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`52.
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`Type of Trial
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`This is a non-jury trial.
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`Order of Proof
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`The parties propose that the presentation of evidence for the December trial will
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`follow the burden of proof and trial shall proceed in the following order:
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`a. Supplemental Opening statements: Plaintiffs, Defendant Par, and Defendant
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`Watson, in that order.
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`b. Plaintiffs’ case-in-chief on infringement against Defendants Par and Watson.
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`c. Upon conclusion of Plaintiffs’ case-in-chief on infringement, Defendants Par and
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`Watson’s responses on infringement.
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`d. Upon conclusion of the infringement issues in the case, Defendants’ case-in-chief
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`on invalidity.
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`e. Upon conclusion of Defendants’ case-in-chief on invalidity, Plaintiffs’ response
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`on invalidity.5
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`f. Defendants’ rebuttal to Plaintiffs’ case on secondary considerations of non-
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`obviousness (if any).
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`g. Each party may offer additional rebuttal on issues where that party has the burden
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`of proof upon application to the Court at trial.
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`
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`5 To the extent Plaintiffs attempt to re-call any witness from the November trial or Gregory Bell
`to testify regarding secondary considerations in their response relating to invalidity, Defendants
`object to any such testimony. Plaintiffs object to Defendants’ calling Catherine Lawton to testify
`regarding secondary considerations, for the reasons set forth in the briefing regarding its Motion
`in limine to Preclude Testimony of Catharine Lawton, attached hereto at Exs. 17a, 17c.
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`E.
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`53.
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`Protective Order and Corporate Representatives in Courtroom
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`The Court has entered a Stipulated Protective Order (D.I. 74) and Stipulated
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`Amended Protective Order (D.I. 343) (the “Amended Protective Order”) to protect “trade secrets
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`or other confidential research, development, manufacture, regulatory, financial, marketing or
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`other competitive information.” The Amended Protective Order provides that the parties will
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`“meet and confer in good faith prior to trial to establish procedures concerning the use of
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`material designated [under the protective order] at trial.”
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`54.
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`The presentation of evidence at trial will take place in open court, unless a party
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`requests and the Court grants the request to close the Courtroom during presentation of certain
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`portions of the evidence.
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`55.
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`The parties have agreed that the individuals designated as In-House Counsel in
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`Paragraph 6.1(a) of the Amended Protective Order, or other In-House Counsel agreed to by the
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`parties, may attend any closed portion of the trial, except, however, that each party has the right
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`to exclude the other parties’ In-House Counsel from any portion of trial concerning the party’s
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`own information that it has previously designated “HIGHLY CONFIDENTIAL-OUTSIDE
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`COUNSEL’S EYES ONLY” under the Amended Protective Order.
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`XI.
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`Order To Control Course of Action
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`56.
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`This order shall control the subsequent cours