Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 1 of 30 PagelD #: 42291
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-1163 (CFC) (CJB)
`CONSOLIDATED
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`BOSTON SCIENTIFIC CORP. and
`BOSTON SCIENTIFIC
`NEUROMODULATION CORP.,
`
`Plaintiffs and Counter-
`Defendants,
`
`Vv.
`
`NEVRO CORP.,
`
`Defendant and
`Counterclaimant.
`
`PROPOSEDSCHEDULING ORDER FOR NON-HATCH-WAXMAN
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`PATENT CASES IN WHICH INFRINGEMENT IS ALLEGED
`
`This 207day of May, 2022, the Court having conducted a status
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`conference in this case, and the parties having determined after discussion that the
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`matter cannot be resolved at this juncture by settlement, voluntary mediation, or
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`bindingarbitration:
`
`IT IS ORDERED that, for the purposes of the claims to be tried
`
`beginning on January 9, 2023, the instant Scheduling Order supersedes all prior
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`scheduling orders that were entered in C.A. No. 16-1163 and consolidated C.A.
`
`No. 18-644;
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-1163 (CFC) (CJB)
`CONSOLIDATED
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`))
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`BOSTON SCIENTIFIC CORP. and
`BOSTON SCIENTIFIC
`NEUROMODULATION CORP.,
`
`Plaintiffs and Counter-
`Defendants,
`
`Vv.
`
`NEVRO CORP.,
`
`Defendant and
`Counterclaimant.
`
`PROPOSEDSCHEDULING ORDER FOR NON-HATCH-WAXMAN
`
`PATENT CASES IN WHICH INFRINGEMENT IS ALLEGED
`
`This 207day of May, 2022, the Court having conducted a status
`
`conference in this case, and the parties having determined after discussion that the
`
`matter cannot be resolved at this juncture by settlement, voluntary mediation, or
`
`bindingarbitration:
`
`IT IS ORDERED that, for the purposes of the claims to be tried
`
`beginning on January 9, 2023, the instant Scheduling Order supersedes all prior
`
`scheduling orders that were entered in C.A. No. 16-1163 and consolidated C.A.
`
`No. 18-644;
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 2 of 30 PagelD #: 42292
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`IT IS FURTHER ORDEREDthat:
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`1.
`
`Relevant Deadlines and Dates. All relevant deadlines and dates
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`established by this Order areset forth in the chart attached as Exhibit A.
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`2.
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`Rule 26(a)(1) Initial Disclosures. The parties shall update their
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`initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) to reflect the
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`issues that remain fortrial in this case within five days of the date of this Order.
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`3.
`
`Disclosure of Asserted Claims and Infringement Contentions.
`
`The parties have already served Disclosures of Asserted Claims and Infringement
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`Contentions for the patents that remain asserted in this case.
`
`Boston Scientific served its Sixth Amended Infringement Contentions
`
`for U.S. Patent No. 6,895,280 (the “’280 patent”) on August 12, 2020 and
`
`Infringement Contentions for U.S. Patent Nos. 6,993,384 (the “384 patent”);
`
`7,853,330 (the “’330 patent”); and 8,682,447 (the “447 patent”) on March 19, 2020.
` Hie. TheCourt lifted thestay of Boston Scientific’s patents during
`the April13, 2022 Status Conference. 4/13/2022Tr. at 111, 117:10-14 (Counselfor
`
`Nevro: “TheCourt liftedtheirstay. The questionofthestay against counterclaims
`
`stillexists.”)]
`
`Tr-atL11:8-15,HF-+H-+4H48:25]2 —
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 3 of 30 PagelD #: 42293
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`Nevroservedits First Supplemental Infringement Contentions for US.
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`Patent Nos. 10,149,978 (the “978 patent”); 9,002,461 (the “’461 patent”);
`
`10,420,935 (the “’935 patent’’); 9,002,460 (the “’460 patent’’); and 10,076,665 (the
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`“°665 patent”) (collectively, “Counterclaim patents”) on May 11, 2020. Neveo-s,
`
`
`
`4,
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`Document Production Accompanying Disclosure of Asserted
`
`Claims and Infringement Contentions. Boston Scientific has already served
`
`Document Productions Accompanying Disclosure of Asserted Claims
`
`and
`
`Infringement Contentions for the 384, ’330, and ’447 patents. Nevro has already
`
`served Document Productions Accompanying Disclosure of Asserted Claims and
`
`Infringement Contentions for its Counterclaim patents.
`
`Boston Scientific has not yet completed disclosures consistent with this
`
`paragraph for the asserted claims of the ’280 patent. Accordingly, by no later than
`
`June 3, 2022, Boston Scientific shall produce to each opposing party or make
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`available for inspection and copying the following information for the ’280 patent,
`
`to the extent it has not already doneso:
`
`(a)
`
`Documents (e.g., contracts, purchase orders,
`
`invoices,
`
`advertisements, marketing materials, offer
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`letters, beta
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`site
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`testing
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 4 of 30 PagelD #: 42294
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`agreements, and third party or joint development agreements) sufficient to
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`evidence each discussion with, disclosure to, or other manner of providing to
`
`a third party, or each sale of or offer to sell, or any public use of, the claimed
`
`invention prior to the date of application for the asserted patent(s);
`
`(b)
`
`All documents evidencing the conception, reduction to
`
`practice, design, and development of each claimed invention, which were
`
`created on or before the date of application for the asserted patent(s) or the
`
`priority date identified pursuant to paragraph 3(f) of this Order, whicheveris
`
`earlier;
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`(c) Acopy ofthefile history for each asserted patent;
`
`(d)
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`All documents evidencing ownership of the patent rights
`
`by the party asserting patent infringement;
`
`(ce)
`
`If
`
`a party identifies
`
`instrumentalities pursuant
`
`to
`
`paragraph 3(g) of this Order, documents sufficient to show the operation of
`
`any aspects or elements of such instrumentalities the patent claimant relies
`upon as embodying any asserted claims;
`
`(f)
`
`Allagreements, includinglicenses, transferring an interest
`
`in any asserted patent;
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 5 of 30 PagelD #: 42295
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`(g) All agreements that
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`the party asserting infringement
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`contends are comparable to a license that would result from a hypothetical
`
`reasonable royalty negotiation;
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`(bh)
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`All agreements that otherwise may be used to support the
`
`party asserting infringement’s damagescase;
`
`(i)
`
`If
`
`a party identifies
`
`instrumentalities pursuant
`
`to
`
`paragraph 3(g) of this Order, documents sufficient to show marking of such
`
`Embodying Instrumentalities; and if the party wants to preserve the right to
`
`recover lost profits based on such products, the sales, revenues, costs, and
`
`profits of such Embodying Instrumentalities; and
`
`(j)
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`All documents comprising or
`
`reflecting a F/RAND
`
`commitment or agreement with respect to the asserted patent(s).
`
`The producing party shall separately identify by production number the documents
`
`that correspond to each category set forth in this paragraph. A party’s production of
`
`a documentas required by this paragraph shall not constitute an admission that such
`
`document evidencesoris prior art under 35 U.S.C. § 102.
`
`5.
`
`Invalidity Contentions. Boston Scientific already served its
`
`Amended Invalidity Contentions for Nevro’s Counterclaim patents on November6,
`
`2020. Nevro hasalready servedits Invalidity Contentions on BSC’s ’384, °330, and
`
`447 patents on June 1, 2020.
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 6 of 30 PagelD #: 42296
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`Nevro has not served invalidity contentions in response to Boston
`
`Scientific’s Sixth Amended Infringement Contentions for the ’280 patent
`
`
` Accordingly, by no later than June 10, 2022, Nevro
`shall serve on all parties its “Invalidity Contentions” for claims 21 and 26 of Boston
`
`Scientific’s ’280 patent, which shall contain the following information:
`
`(a)
`
`The identity of each item ofpriorart that the party alleges
`
`anticipates each asserted claim or renders the claim obvious. Each prior art
`
`patent shall be identified by its number, country of origin, and date of issue.
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`Each prior art publication shall be identified by its title, date of publication,
`
`and, where feasible, author and publisher. Each alleged sale or public use
`
`shall be identified by specifying the item offered for sale or publicly used or
`
`known,the date the offer or use took place or the information became known,
`
`and the identity of the person(s) or entity(ies) that made the use or made and
`
`received the offer, or the person(s) or entity(ies) that made the information
`
`known or to whom it was made known. For pre-AIA claims, prior art under
`
`35 U.S.C. § 102(f) shall be identified by providing the name of the person(s)
`
`from whom and the circumstances under which the invention or any part ofit
`
`was derived. For pre-AIA claims, prior art under 35 U.S.C. § 102(g) shall be
`
`identified by providing the identities of the person(s) or entity(ies) involved
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 7 of 30 PagelD #: 42297
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`in and the circumstances surrounding the making of the invention before the
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`patent applicant(s);
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`(b) Whether each item of prior art anticipates each asserted
`
`claim or renders it obvious. If obviousnessis alleged, an explanation of why
`
`the prior art renders the asserted claim obvious, including an identification of
`
`any combinations of prior art showing obviousness;
`
`(c)
`
`A chart identifying specifically where and how in each
`
`alleged item of prior art each limitation of each asserted claim is found,
`
`including for each limitation that such party contends is governed by
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`35 U.S.C.§ 112(f), the identity ofthe structure(s), act(s), or material(s) in each
`
`item ofprior art that performs the claimed function; and
`
`(d) Any grounds of invalidity based on 35 U.S.C. § 101,
`
`indefiniteness under 35 U.S.C. § 112(b), or lack of enablementor insufficient
`
`written description under 35 U.S.C. § 112(a) of any of the asserted claims.
`
`6.
`
`Document Production Accompanying Invalidity Contentions.
`
`Per paragraph 5 of this Order, above, with the Invalidity Contentions for the °280
`
`patent, Nevro shall produce or make available for inspection and copying:
`
`(a)
`
`Source code, specifications, schematics,
`
`flow charts,
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`artwork, formulas, or other documentation sufficient to show the operation of
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 8 of 30 PagelD #: 42298
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`any aspects or elements of an Accused Instrumentality identified by the patent
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`claimant in its chart produced pursuant to paragraph 3(c) of this Order;
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`(b) A copy or sample of the prior art identified pursuant to
`
`paragraph 5(a) that does not appearin the file history of the patent(s) at issue.
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`To the extent any such item is not in English, an English translation of the
`
`portion(s) relied upon shall be produced;
`
`(c)
`
`All agreements that
`
`the party opposing infringement
`
`contends are comparable to a license that would result from a hypothetical
`
`reasonable royalty negotiation;
`
`(d)
`
`Documents sufficient to show the sales, revenue, cost, and
`
`profits for Accused Instrumentalities identified pursuant to paragraph 3(b) of
`
`this Order for any period of alleged infringement; and
`
`(ec)
`
`All agreements that may be used to support the damages
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`case of the party opposing infringement.
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`The producing party shall separately identify by production number the documents
`
`that correspond to each category set forth in this paragraph.
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`7.
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`Amendment to Contentions. Amendment of the Infringement
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`Contentions or the Invalidity Contentions may be made only by order of the Court
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`upon a timely showing of good cause. Non-exhaustive examples of circumstances
`
`that may, absent undue prejudice to the non-movingparty, support a finding of good
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 9 of 30 PagelD #: 42299
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`cause include(a) recent discovery of material prior art despite earlier diligent search
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`and (b) recent discovery ofnonpublic information about the Accused Instrumentality
`
`that was not discovered, despite diligent efforts, before the service of the
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`Infringement Contentions. The duty to supplement discovery responses does not
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`excuse the need to obtain leave of the Court to amend contentions.
`
`8.
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`Joinder of Other Parties and Amendmentof Pleadings. To join
`
`other parties, or to amend or supplementthe pleadings, the parties mustfile a motion
`
`seeking leave to do so and must demonstrate good cause.
`
`9.
`
`Discovery.
`
`(a)
`
`Use of Discovery. The parties agree to treat the fact
`
`discovery produced in Boston Scientific Corp. et al. v. Nevro Corp., C.A. No.
`
`16-1163-CFC-CJB (D. Del.), Boston Scientific Corp. et al. v. Nevro Corp.,
`
`C.A. No. 18-644-CFC-CJB (D. Del.), and Nevro Corp. v. Boston Scientific
`
`
`(b) Fact Discovery Cut Off.ccatendts
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`discovery related to Nevro’s Counterclaim patents is completeyAll fact
`
`discoveryAgastsnBicneteZelated to Boston Scientific’s patent andtrade
`
`produced in this case.
`
`secrets claims] in this case shall be initiated so that it will be completed on or
`
`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 10 of 30 PagelD #: 42300
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`/ August12,2022] [Re
` before
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`subject to the following limitations:
`
`(c)
`
`Document Production. Document production shall be
`
`Ag: July21,2022) completed on or before ;
`
`
`
`(d)
`
`Requests for Admission. For this additional fact discovery
`
`period, a maximum of 10 requests for admission is permitted for eachside.
`
`(e)
`
` Interrogatories. For this additional fact discovery period,
`
` » 10 interrogatories]
`a maximum of
` including contention interrogatories, is permitted for each
`
`side.
`
`(f)
`
`(1)
`
`Depositions.
`
`Limitation on Hours for Deposition Discovery. Forthis
`
`ABtenHeitwtific: 75 hours
`
`additional fact discovery period, each side is limited to a total of
` Vof taking fact
`testimony by deposition upon oral examination. These limits do not
`
`include expert depositions.
`
`(2)
`
`Location of Depositions. Any party or representative
`
`(officer, director, or managing agent) of a party filing a civil action in
`
`this District Court must ordinarily be required, upon request, to submit
`
`10
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 11 of 30 PagelD #: 42301
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`to a deposition at a place designated within this District. Exceptions to
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`this general rule may be madeby order of the Court or by agreement of
`
`the parties. A defendant who becomes a counterclaimant, cross-
`
`claimant, or third-party plaintiff shall be considered as having filed an
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`action in this Court for the purpose of this provision.
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`10.
`
`Pinpoint Citations. Pinpoint citations are required in all briefing,
`
`letters, and concise statements of facts. The Court will ignore any assertions of
`
`controverted facts and controverted legal principles not supported by a pinpoint
`
`citation to, as applicable: the record, an attachment or exhibit, and/or case law or
`
`appropriate legal authority. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
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`1991) (“Judgesare notlike pigs, hunting for truffles buried in briefs.”).
`
`11. Application to Court for Protective Order. The Court entered a
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`protective order specifying terms and conditions for the disclosure of confidential
`
`information on March 10, 2020 (C.A. No. 18-644-CFC-CJB, D.I. 73) that includes
`
`the following paragraph:
`
`Other Proceedings. By entering this Order and limiting
`the disclosure of information in this case, the Court does
`not intend to preclude another court from finding that
`information may be relevant and subject to disclosure in
`another case. Any person or party subject to this Order
`who becomes subject to a motion to disclose another
`party’s information designated as confidential pursuant to
`this Order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be
`heard on whether that information should be disclosed.
`
`11
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 12 of 30 PagelD #: 42302
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`12. Disputes Relating to Discovery Matters and Protective Orders.
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`Per the Court’s previous Order (C.A. No. 18-cv-644-CFC-CJB, D.I. 51), all such
`
`disputes are referred to Magistrate Judge Burke.
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`13.
`
`Papers Filed Under Seal. Whenfiling papers underseal,
`
`counsel shall deliver to the Clerk an original and two copies of the papers. A
`
`redacted version of any sealed document shall be filed electronically within seven
`
`days of the filing of the sealed document.
`
`14. Hard Copies. The parties shall provide to the Court two hard
`
`copies ofall letters filed pursuant to paragraph 12 of this Order,all briefs, and any
`
`other documents filed in support of any such letters and briefs (i.e., the concise
`
`statementof facts filed pursuant to paragraph 20 of this Order, appendices, exhibits,
`
`declarations, affidavits, etc.). This provision also applies to papers filed underseal.
`
`(a)
`
`Exhibits and Attachments. Each exhibit and attachment
`
`to_a letter, brief, or pretrial order shall be separated by a tab.
`
`(Accordingly,
`
`eachbrief filed in connection with a motion in limine in a pretrial order must
`
`be separated by a tab.) Each exhibit and attachmentshall have page numbers
`
`of some sort such that a particular page of an exhibit or attachment can be
`
`identified by a page number. The parties shall take all practical measures to
`
`avoid filing multiple copies of the same exhibit or attachment. The parties
`
`should highlight the text of exhibits and attachments they wish the Court to
`
`12
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 13 of 30 PagelD #: 42303
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`read. The parties are encouraged to include in an exhibit or attachment only
`
`the pages of the document in questionthat (1) identify the document(e.g., the
`
`first page of a deposition transcript or the cover page of a request for
`
`discovery) and (2) are relevantto the issue(s) before the Court.
`
`(b)
`
`Colors of Front Covers. The covers of briefs filed in
`
`connection with all motions except for motionsin limine includedin a pretrial
`
`order shall be as follows:
`
`(1)
`
`Opening brief — Blue
`
`(2) Answering brief — Red
`
`(3)
`
`Reply brief -— Gray
`
`15.
`
`Claim Construction Issue Identification. On or before ase
` the parties shall exchangea list
`sexe. June 7, 2022
`
`of those claim term(s)/phrase(s) that they believe need construction and their
`
`proposed claim construction(s) of those term(s)/phrase(s) for BSC’s °280, °330,
`
`°384, and °447 patents.! This document will not befiled with the Court. Subsequent
`
`to exchanging that list, the parties will meet and confer to prepare a Joint Claim
`
`Construction Chart to be filed no later than June 21, 2022. The Joint Claim
`
`Construction Chart, in Word format, shall be e-mailed simultaneously with filing to
`
`The Court has already entered a Claim Construction Order on disputed claim
`I
`terms for Nevro’s Counterclaim patents. See D.I. 551.
`
`13
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 14 of 30 PagelD #: 42304
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`cfc_civil@ded.uscourts.gov. The text for the Joint Claim Construction Chart shall
`
`be 14-point and in Times New Romanor a similar typeface. The parties’ Joint Claim
`
`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s)
`
`in issue and should include each party’s proposed construction of the disputed claim
`
`language with citation(s) only to the intrinsic evidence in support oftheir respective
`
`proposed constructions. A separate text-searchable PDF of each of the patent(s) in
`
`issue shall be submitted with this Joint Claim Construction Chart.
`
`In this joint
`
`submission,
`
`the parties shall not provide argument.
`
`Each party shall
`
`file
`
`concurrently with the Joint Claim Construction Chart a “Motion for Claim
`
`Construction”that requests the Court to adopt the claim construction position(s) of
`
`that party set forth in the Joint Claim Construction Chart. The motion shall not
`
`contain any argument andshall simply state that the party “requests that the Court
`
`adopt the claim construction position[s] of [the party] set forth in the Joint Claim
`
`Construction Chart (D.I. [ ]).”
`
`16.
`
`Claim Construction Briefing. The Plaintiff shall serve, but not
`
`file, its opening brief, not to exceed 5,500 words on June 28, 2022. The Defendants
`
`shall serve,
`
`
`but notfile, their answeringbrief, not to exceed 8,250 words, on {Bashan
`
` July 19, 2022
`
`. The Plaintiff shall serve, but not
`
`file, its reply brief, not to exceed 5,500 words, on RastonSeionsnie August 2,
`
`
`The Defendants shall serve, but not file, their sur-
`
`2022]
`
`14
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 15 of 30 PagelD #: 42305
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`to exceed 2,750 words, on Seeeeeahumes 16,
`reply brief, not
`. The text for each brief shall be 14-point and in Times
`
`New Romanor a similar typeface. Each brief must includeacertification by counsel
`
`that the brief complies with the type and numberlimitations set forth above. The
`
`person who prepares the certification may rely on the word count of the word-
`
`processing system usedto prepare thebrief.
`Nolater than ieee”ccs 23, 2022]
`
`
`
`
`
`* the parties shall file a Joint Claim Construction Brief.
`
`(Should the parties
`
`later stipulate or otherwise request to have this deadline extended, the parties will
`
`presumptively lose their claim construction hearing date upon the Court’s granting
`
`the extension.) The parties shall copy and paste their untitled briefs into one brief,
`
`with their positions on each claim term in sequential order, in substantially the form
`
`below.
`
`JOINT CLAIM CONSTRUCTION BRIEF
`
`I,
`
`II.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`A.
`
`[TERM 1]
`
`$
`
`I.
`2.
`3.
`4.
`
`Plaintiff's Opening Position
`Defendants’ Answering Position
`Plaintiff's Reply Position
`Defendants’ Sur-Reply Position
`
`15
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 16 of 30 PagelD #: 42306
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`B.
`
`[TERM 2]
`
`1.
`2.
`3,
`4.
`
`Plaintiff's Opening Position
`Defendants’ Answering Position
`Plaintiff's Reply Position
`Defendants’ Sur-Reply Position
`
`Etc. The parties need not include any general summariesofthe law relating to claim
`
`construction. If there are any materials that would be submitted in an appendix, the
`
`parties shall submit them in a Joint Appendix. Citations to intrinsic evidence shall
`be set forth in the Joint Claim Construction Brief, Citations to expert declarations
`
`and other extrinsic evidence may be madein the Joint Claim Construction Brief as
`
`the parties deem necessary, but the Court will review such extrinsic evidence only if
`
`the Court is unable to construe the disputed claim terms based on the intrinsic
`
`evidence. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 (Fed. Cir.
`
`1996). Declarations shall not contain legal argument or be used to circumvent the
`
`briefing word limitations imposed by this paragraph. The Joint Claim Construction
`
`Brief and Joint Appendix shall comply with paragraphs 10 and 14 ofthis Order.
`
`17. Meet and Confer Confirmation and Amended Claim Chart. On
`
` or before [BestemSerertifrerAugust 30, 2022 4), Delaware
`
`
`and lead counsel for the parties shall meet and confer and thereafter file an Amended
`
`Joint Claim Construction Chart that sets forth the terms that remain in dispute.
`
`During the meet and confer, the parties shall attempt to reach agreement on any
`
`disputed terms where possible and to narrow the issues related to the remaining
`
`16
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`
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`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 17 of 30 PagelD #: 42307
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`disputed terms. The parties shall file with the Amended Joint Claim Construction
`
`Chart a letter that identifies by name each individual whoparticipated in the meet
`
`and confer, when and how (i.e., by telephone or in person) the meet and confer
`
`occurred, and how long it lasted.
`
`If no agreements on constructions have been
`
`reached or if no dispute has been narrowed as a result of the meet and confer, the
`
`letter shall so state, and the parties need not file an Amended Joint Claim
`
`Construction Chart.
`
`18. Hearing on Claim Construction. Beginning at F a a.m.
`
`on Nov. 03 300he Court will hear argument on claim construction. Absent prior
`
`approval ofthe Court (which,if it is sought, must be done by joint letter submission
`
`no later than the date on which answering claim construction briefs are due to be
`
`served), the parties shall not present testimony at the argument, and the argument
`
`shall not exceed a total of three hours.
`
`19. Disclosure of Expert Testimony. (a) Expert Reports.
`
`iidThe parties have
`
`exchangedOpeningand RebuttalExpert reportsregardingNevro’s
`
`Counterclaim patents. Subjectto Nevro’sdismissal withprejudice ofits
`
`counterclaimsforthe’460and665patentstheparties shall exchangeReply
`
`expert reportsrelating toNevro’s. remainingCounterclaim patents on
` October7, 2022.)
`
`17
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 18 of 30 PagelD #: 42308
`
`
`
`
`For the sake of clarity and to update expert reports [Bos
`
`take into account the additional discovery that will be produced, each party
`
`shall re-serve operative expert reports according to the schedule set forth in
`
`this paragraph. The foregoing does not precludeuse of the prior served expert
`
`reports for purposes of cross-examination.
`
`For the party with the initial burden of proof on the subject
`
`matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due
` on orbefore
`Hck August26,2022
`
`The supplemental disclosure to contradict or rebut evidence on the same
`
`matter identified by another party, including regarding objective indicia of
`
` iio? September 23,
`non-obviousness, is due on or before [Bas
` 2022]
`the initial burden of proof and rebuttals regarding objective indicia of non-
`
`[By
`' October 7,
`
`obviousness
`are due on or before
`
`™ No other expert reports will be permitted
`
`2022]
`
`without either the consent ofall parties or leave of the Court. Along with the
`
`submissionsof the expert reports, the parties shall provide the dates and times
`
`18
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 19 of 30 PagelD #: 42309
`
`of their experts’ availability for deposition. Depositions of experts shall be
` iid:October 21, 2022][f
`completed on or before [mes
`
`
`(b)
`
`Objections to Expert Testimony.
`
`To the extent any
`
`objection to expert testimony is made pursuantto the principles announced in
`
`Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as
`
`incorporated in Federal Rule of Evidence 702,it shall be made by motion no
`
`later than the deadline for dispositive motions set forth herein, unless
`
`otherwise ordered by the Court.
`
`20.
`
`Case Dispositive and Daubert Motions.
`
`(a)
`
`No Early Motions Without Leave. All case dispositive
`
`motions and the opening briefs and affidavits supporting such motions shall
` be served and filed on or before
` . No case dispositive motion under Rule
`
` Should the
`
`parties later stipulate or otherwise request to have the reply brief deadline
`
`extended, the parties will lose their trial date upon the Court’s granting the
`
`19
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 20 of 30 PagelD #: 42310
`
`extension, and no newtrial date will be given until the dispositive motion(s)
`
`has(have) been decided.
`(b) Motions to Be Filed Separately. A party shall not combine
`
`into a single motion multiple motions that rely in whole or in part on different
`
`facts.
`
`(c) Word Limits. Each party is permitted to file as many case
`
`dispositive motions as desired, provided, however, that each SIDE will be
`
`limited to a combinedtotal of 10,000 wordsforall opening briefs, a combined
`
`total of 10,000 words for all answering briefs, and a combined total of 5,000
`
`wordsforall reply briefs, regardless ofthe numberofcase dispositive motions
`
`that are filed. In the event that a party files, in addition to a case dispositive
`
`motion, a Daubert motion to exclude or preclude all or any portion of an
`
`expert’s testimony, the total amount ofwords permitted for all case dispositive
`
`and Daubert motionsshall be increased for each SIDE to 12,500 wordsforall
`
`opening briefs, 12,500 words for all answering briefs, and 6,250 wordsfor all
`
`reply briefs. The text for each brief shall be 14-point and in Times New
`
`Roman or a similar typeface. Each brief must include a certification by
`
`counselthat the brief complies with the type and numberlimitations set forth
`
`above. The person whopreparesthe certification may rely on the word count
`
`of the word-processing system used to prepare the brief.
`
`20
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 21 of 30 PagelD #: 42311
`
`(d)
`
`Ranking of Summary Judgment Motions. A party that
`
`files more than one summary judgment motion shall number each motion to
`
`make clear the order in which the party wishes the Court to consider the
`
`motions in question. The first motion the party wishes the Court to consider
`
`shall be designated #1, the second motion shall be designated #2, and so on.
`
`The Court will review the party’s summary judgment motions in the order
`
`designated by the party. If the Court decides to deny a motion filed by the
`
`party, barring exceptional reasons determined sua sponte by the Court, the
`
`Court will not review any further summary judgment motions filed by the
`
`party.
`
`(e)
`
`Ranking ofDaubert Motions. A party that files more than
`
`one Daubert motion shall number each motion to make clear the order in
`
`which the party wishes the Court to consider the motions in question. The
`
`first motion the party wishes the Court to consider shall be designated #1, the
`
`second motion shall be designated #2, and so on. The Court will review the
`
`patty’s Daubert motions in the order designated by the party.
`
`If the Court
`
`decides to deny a motion filed by the party, barring exceptional reasons
`
`determined sua sponte by the Court, the Court will not review any further
`
`Daubert motionsfiled by the party. If the Court denies a Daubert motion and
`
`the party that brought the motion does not cross examine the expert witnessat
`
`21
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 22 of 30 PagelD #: 42312
`
`trial about the matters raised in the Daubert motion, the Court will reduce by
`
`an appropriate amount the timeallotted to that party attrial.
`
`(f)
`
`Concise Statement of Facts Requirement. Any motion for
`
`summary judgment shall be accompanied by a separate concise statement
`
`detailing each material fact as to which the moving party contendsthat there
`
`are no genuine issues to be tried that are essential
`
`for
`
`the Court’s
`
`determination ofthe summary judgment motion(not the entire case). A party
`
`must submit a separate concise statement of facts for each summary judgment
`
`motion. Any party that opposes the motion shall file and serve with its
`
`opposing papers a separate document containing a single concise statement
`
`that admits or disputes the facts set forth in the moving party’s concise
`
`statement, as well as sets forth all material facts as to which it is contended
`
`that there exists a genuine issue necessary to belitigated.
`
`(g)
`
`Focus of the Concise Statement. When preparing the
`
`separate concise statement, a party shall reference only the material facts that
`
`are absolutely necessary for the Court
`
`to determine the limited issues
`
`presented in the motion for summary judgment (and no others), and each
`
`reference shall contain a citation to a particular affidavit, deposition, or other
`
`The party must detail each materialfact in its concise statement of facts. The
`concise statements of facts play an important gatekeeping role in the Court’s
`consideration of summary judgment motions.
`
`22
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 Filed 05/20/22 Page 23 of 30 PagelD #: 42313
`
`document
`
`that supports the party’s interpretation of the material
`
`fact.
`
`Documents referenced in the concise statement may, but need not, be filed in
`
`their entirety if a party concludesthat the full context would be helpfulto the
`
`Court (e.g., a deposition miniscript with an index stating what pages may
`contain key words may often be useful). The concise statement shall
`
`particularly identify the page and portion of the page of the document
`
`referenced. The documentreferredto shall have relevant portions highlighted
`
`or otherwise emphasized. The parties may extract and highlight the relevant
`
`portions of each referenced document, but they shall ensure that enough of a
`
`documentis attached to put the matter in context. If a party determines that
`
`an entire deposition transcript should be submitted, the party should consider
`
`whether a miniscript would be preferable to a full-size transcript. If an entire
`
`transcript is submitted, the index of terms appearing in the transcript must be
`
`included, if it exists. When multiple pages from a single document are
`
`submitted, the pages shall be grouped in a single exhibit. Concise statements
`
`of fact shall comply with paragraphs 10 and 14 of this Order.
`
`(h) Word Limits
`
`for Concise Statement.
`
`The concise
`
`statement in support of or in opposition to a motion for summary judgment
`
`shall be no longer than 1,750 words. The text for each statementshall be 14-
`
`point and in Times New Romanor a similar typeface. Each statement must
`
`23
`
`
`
`Case 1:16-cv-01163-CFC-CJB Document 916 : Filed 05/20/22 Page 24 of 30 PagelD #: 42314
`
`include a certification by counsel that the statement complies with the type
`
`and number limitations set forth above. The person who prepares the
`
`certification may rely on the word count of the word-processing system used
`
`to prepare the statement.
`
`(i)
`
`Affidavits and Declarations. Affidavits or declarations
`
`setting forth facts and/or authenticating exhibits, as well as exhibits
`
`themselves, shall be attached only to the concise statement(i.e., not briefs).
`
`(j)
`
`Scope of Judicial Review. When resolving motions for
`
`summary judgment, the Court shall have no independent duty to search and
`
`consider any part of the record not otherwise referenced in the separate
`
`concise statements ofthe parties. Further, the Court shall have no ind
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