Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 1 of 23 PageID #: 149
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`AUROBINDO PHARMA USA INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`BRECKENRIDGE PHARMACEUTICAL, INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`HETERO USA INC., HETERO LABS LTD., and
`HETERO LABS LTD. UNIT-V,
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`C.A. No. 17-cv-374-LPS
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`C.A. No. 17-cv-375-LPS
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`C.A. No. 17-cv-376-LPS
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
`
`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
`
`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendants and Counterclaim-Plaintiffs.
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`– 1 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 2 of 23 PageID #: 150
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`C.A. No. 17-cv-377-LPS
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`C.A. No. 17-cv-378-LPS
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`C.A. No. 17-cv-379-LPS
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`INVAGEN PHARMACEUTICALS, INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`LUPIN LTD.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`MYLAN PHARMACEUTICALS INC.,
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendant and Counterclaim-Plaintiff.
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`– 2 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 3 of 23 PageID #: 151
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendants and Counterclaim-Plaintiffs.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`
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`SUNSHINE LAKE PHARMA CO., LTD.,
`SUNSHINE LAKE LLC, and HEC PHARM
`USA INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`TORRENT PHARMACEUTICALS LTD.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`UNICHEM LABORATORIES, LTD.,
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
`
`Defendant and Counterclaim-Plaintiff.
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`
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`C.A. No. 17-cv-380-LPS
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`C.A. No. 17-cv-381-LPS
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`C.A. No. 17-cv-382-LPS
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`– 3 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 4 of 23 PageID #: 152
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendants and Counterclaim-Plaintiffs.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`ACCORD HEALTHCARE INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`APOTEX, INC. and APOTEX CORP.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`BIONPHARMA INC.,
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendant and Counterclaim-Plaintiff.
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`C.A. No. 17-cv-398-LPS
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`C.A. No. 17-cv-399-LPS
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`C.A. No. 17-cv-400-LPS
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`– 4 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 5 of 23 PageID #: 153
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendants and Counterclaim-Plaintiffs.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`DR. REDDY’S LABORATORIES, LTD. and
`DR. REDDY’S LABORATORIES, INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`EMCURE PHARMACEUTICALS LTD.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`IMPAX LABORATORIES, INC.,
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
`
`Defendant and Counterclaim-Plaintiff.
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`C.A. No. 17-cv-401-LPS
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`C.A. No. 17-cv-402-LPS
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`C.A. No. 17-cv-403-LPS
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`– 5 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 6 of 23 PageID #: 154
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
`
`Defendant and Counterclaim-Plaintiff.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`INDOCO REMEDIES LTD.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`MACLEODS PHARMACEUTICALS LTD.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`MICRO LABS USA INC. and MICRO LABS,
`LTD.,
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendants and Counterclaim-Plaintiffs.
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`C.A. No. 17-cv-404-LPS
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`C.A. No. 17-cv-405-LPS
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`C.A. No. 17-cv-406-LPS
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`– 6 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 7 of 23 PageID #: 155
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
`
`v.
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`Defendant and Counterclaim-Plaintiff.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`SANDOZ INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`SIGMAPHARM LABORATORIES, LLC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`SUN PHARMACEUTICAL INDUSTRIES INC.
`and SUN PHARMA GLOBAL FZE,
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendants and Counterclaim-Plaintiffs.
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`C.A. No. 17-cv-407-LPS
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`C.A. No. 17-cv-408-LPS
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`C.A. No. 17-cv-409-LPS
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`– 7 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 8 of 23 PageID #: 156
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendants and Counterclaim-Plaintiffs.
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`WOCKHARDT BIO AG and WOCKHARDT
`USA, LLC,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`ZYDUS PHARMACEUTICALS (USA) INC.,
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`PRINSTON PHARMACEUTICAL INC.,
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`Plaintiffs and Counterclaim-Defendants,
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`v.
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`Defendant and Counterclaim-Plaintiff.
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`Plaintiffs and Counterclaim-Defendants,
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`v.
`
`Defendant and Counterclaim-Plaintiff.
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`
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`
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`C.A. No. 17-cv-411-LPS
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`C.A. No. 17-cv-412-LPS
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`C.A. No. 17-cv-426-LPS
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`[PROPOSED] SCHEDULING ORDER
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`This ____ day of _________, 2017, the Court having consulted with the parties’
`
`attorneys and received a joint proposed scheduling order pursuant to Local Rule 16.2(a) and
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`Judge Stark’s Revised Procedures for Managing Patent Cases (which is posted at
`
`– 8 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 9 of 23 PageID #: 157
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`http://www.ded.uscourts.gov, see Chambers, Judge Leonard P. Stark, Patent Cases), and the
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`parties1 having determined after discussion that the matter cannot be resolved at this juncture by
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`settlement, voluntary mediation, or binding arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Consolidation. These actions are consolidated for purposes of discovery and all
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`papers shall be filed in Civil Action No. 17-374-LPS. Any party may request that the Court
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`consolidate for any other purpose by following the “Discovery Matters” procedures.
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`2.
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(1) by October 20, 2017. If they have not already done so,
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`the parties are to review the Court’s Default Standard for Discovery, Including Discovery of
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`Electronically Stored Information (“ESI”) (which is posted at http://www.ded.uscourts.gov; see
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`Other Resources, Default Standards for Discovery, and is incorporated herein by reference). The
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`deadlines contained in the Court’s Default Standard for Discovery, Including Discovery of ESI
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`(“ESI Rules”) shall be modified as follows:
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` ESI Rule 3 Disclosures: The disclosures required by ESI Rule 3 shall be made by
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`November 17, 2017.
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` ESI Rule 4.a Disclosure: By November 17, 2017, and for each Defendant Group,2
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`the Plaintiffs shall specifically identify the accused products and the asserted patent(s)
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`they allegedly infringe, and produce the file history for each asserted patent.
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`
`1 Mylan respectfully continues to submit that venue over Mylan in the District of Delaware is improper,
`and participates in this submission only to the extent necessary to comply with the Court’s August 31,
`2017 Oral Order requiring the parties to submit a proposed scheduling order (D.I. 14). Mylan’s
`participation here does not waive and is not intended to waive Mylan’s right to renew its motion seeking
`dismissal for improper venue pursuant to the Court’s September 11, 2017 Opinion (D.I. 36). Plaintiffs
`disagree with Mylan’s position and maintain that venue is proper in this District.
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`– 9 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 10 of 23 PageID #: 158
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` ESI Rule 4.b Disclosure: By December 15, 2017, each Defendant Group shall
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`produce to the Plaintiffs the core technical documents related to the accused
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`product(s).
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` ESI Rule 4.c Disclosure: By February 16, 2018, Plaintiffs shall produce to each
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`Defendant Group an initial claim chart relating each accused product to the asserted
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`claims each product allegedly infringes.
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` ESI Rule 4.d. Disclosure: By April 20, 2018, each Defendant Group shall produce to
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`the Plaintiffs its initial invalidity contentions for each asserted claim, as well as the
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`related invalidating references (e.g., publications, manuals and patents).
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`3.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties shall be filed on or before July 27, 2018, and all motions to amend or supplement the
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`pleadings, shall be filed on or before October 19, 2018.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court by October 27, 2017. Should counsel be
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`unable to reach an agreement on a proposed form of order, counsel must follow the provisions of
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`Paragraph 8(i) below.
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`Any proposed protective order must include the following paragraph:
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`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
`
`2 “Defendant Group” shall be defined to include all parties sued by Plaintiffs in a single cause
`of action.
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`– 10 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 11 of 23 PageID #: 159
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`disclose another party’s information designated “confidential” [the
`parties should list any other level of designation, such as “highly
`confidential,” which may be provided for in the protective order]
`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.
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`Papers Filed Under Seal. In accordance with section G of the Administrative
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`5.
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`Procedures Governing Filing and Service by Electronic Means, a redacted version of any sealed
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`document shall be filed electronically within seven (7) days of the filing of the sealed document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of
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`a court proceeding (including a teleconference), such party should expressly note that intent at
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`the start of the court proceeding. Should the party subsequently choose to make a request for
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`sealing or redaction, it must, promptly after the completion of the transcript, file with the Court
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`a motion for sealing/redaction, and include as attachments (1) a copy of the complete transcript
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`highlighted so the Court can easily identify and read the text proposed to be sealed/redacted,
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`and (2) a copy of the proposed redacted/sealed transcript. With their request, the party seeking
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`redactions must demonstrate why there is good cause for the redactions and why disclosure of
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`the redacted material would work a clearly defined and serious injury to the party seeking
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`redaction.
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`6.
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`Courtesy Copies. Other than with respect to “discovery matters,” which are
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`governed by paragraph 8(g), and the final pretrial order, which is governed by paragraph 20, the
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`parties shall provide to the Court two (2) courtesy copies of all briefs and one (1) courtesy copy
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`of any other document filed in support of any briefs (i.e., appendices, exhibits, declarations,
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`affidavits etc.). This provision also applies to papers filed under seal.
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`– 11 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 12 of 23 PageID #: 160
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`7.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution.
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`8.
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`Discovery. Unless otherwise ordered by the Court, the limitations on discovery
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`set forth in Local Rule 26.1 shall be strictly observed.
`
`a.
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`Discovery Cut Off. All discovery in this case shall be initiated so that it
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`will be completed on or before July 12, 2019.
`
`b.
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated
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`so that it will be completed on or before November 20, 2018.
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`c.
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`Document Production. Document production shall be substantially
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`complete by June 15, 2018 for all requests for production served by April 16, 2018.
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`d.
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`Requests for Admission. Plaintiffs may serve a maximum of 50 requests
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`for admission on each Defendant group. Collectively, Defendants may serve a maximum of 35
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`common requests for admission (i.e., requests for admission that are served on behalf of all
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`Defendant groups) on Plaintiffs. Each Defendant group may serve up to of 15 additional
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`requests for admission on Plaintiffs. The preceding limits on requests for admission are
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`exclusive of requests for admission solely for the purpose of authenticating documents or
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`establishing that documents are business records.
`
`e.
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`Requests for Production. Plaintiffs may serve a maximum of 65 common
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`requests for production (i.e., requests for production that are concurrently served on all
`
`Defendants groups) on each Defendant group, to which each Defendant group will separately
`
`respond. Plaintiffs may serve up to 15 additional Defendant group-specific requests for
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`production on each Defendant group, to which only the served Defendant group will respond.
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`Collectively, Defendants may serve a maximum of 65 common requests for production (i.e.,
`
`– 12 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 13 of 23 PageID #: 161
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`requests for production that are served on behalf of all Defendant groups) on Plaintiffs. Each
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`Defendant group may serve up to 15 additional requests for production on Plaintiffs. All
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`requests for production shall be labeled as “Common” or “Defendant” when served.
`
`f.
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`Interrogatories.
`
`i.
`
`Plaintiffs may serve a maximum of 25common
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`interrogatories (i.e., interrogatories that are concurrently
`
`served on all Defendants groups), including all discrete
`
`subparts, on each Defendant group, to which each
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`Defendant group will separately respond. Plaintiffs may
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`serve up to 10 additional Defendant group-specific
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`interrogatories (including all discrete subparts) on each
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`Defendant group, to which only the served Defendant
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`group will respond. Collectively, Defendants may serve a
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`maximum of 25 common interrogatories (i.e.,
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`interrogatories that are served on behalf of all Defendant
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`groups), including all discrete subparts, on Plaintiffs. Each
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`Defendant group may serve up to 10 additional
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`interrogatories (including all discrete subparts) on
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`Plaintiffs. All interrogatories shall be labeled as
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`“Common” or “Defendant” when served.
`
`ii.
`
`The Court encourages the parties to serve and respond to
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`contention interrogatories early in the case. In the absence
`
`of agreement among the parties, contention interrogatories,
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`– 13 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 14 of 23 PageID #: 162
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`if filed, shall first be addressed by the party with the burden
`
`of proof. The adequacy of all interrogatory answers shall
`
`be judged by the level of detail each party provides; i.e., the
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`more detail a party provides, the more detail a party shall
`
`receive.
`
`g.
`
`Depositions. The parties agree to meet and confer on limits for deposition
`
`discovery, including locations for depositions, and submit an Amended Scheduling Order
`
`proposing such a limitation no later than May 4, 2018.
`
`h.
`
`Disclosure of Expert Testimony.
`
`i.
`
`Expert Reports. For the party who has the initial burden of
`
`proof on the subject matter, the initial Federal Rule 26(a)(2)
`
`disclosure of expert testimony is due on or before
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`February 1, 2019. The supplemental disclosure to
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`contradict or rebut evidence on the same matter identified
`
`by another party is due on or before March 29, 2019.
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`Reply expert reports from the party with the initial burden
`
`of proof are due on or before April 25, 2019. No other
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`expert reports will be permitted without either the consent
`
`of all parties or leave of the Court. Along with the
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`submissions of the expert reports, the parties shall advise of
`
`the dates and times of their experts’ availability for
`
`deposition.
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`– 14 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 15 of 23 PageID #: 163
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`ii.
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`Expert Discovery. Expert discovery in this case will be
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`completed on or before July 2, 2019.
`
`iii.
`
`Objections to Expert Testimony. To the extent any
`
`objection to expert testimony is made pursuant to the
`
`principles announced in Daubert v. Merrell Dow Pharm.,
`
`Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule
`
`of Evidence 702, it shall be made by motion no later than
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`July 19, 2019, unless otherwise ordered by the Court.
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`Oppositions to such motions shall be filed no later than
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`August 2, 2019, and replies to such motions shall be filed
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`no later than August 9, 2019. Briefing on such motions is
`
`subject to the page limits set out in connection with briefing
`
`of case dispositive motions.
`
`i.
`
`Discovery Matters and Disputes Relating to Protective Orders.
`
`i.
`
`Any discovery motion filed without first complying with
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`the following procedures will be denied without prejudice
`
`to renew pursuant to these procedures.
`
`ii.
`
`Should counsel find, after good faith efforts including
`
`verbal communication among Delaware and Lead Counsel
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`for all parties to the dispute that they are unable to resolve a
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`discovery matter or a dispute relating to a protective order,
`
`the parties involved in the discovery matter or protective
`
`– 15 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 16 of 23 PageID #: 164
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`order dispute shall submit a joint letter in substantially the
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`following form:
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`Dear Judge Stark:
`
`The parties in the above- referenced matter
`
`write to request the scheduling of a discovery
`teleconference.
`
`The following attorneys, including at least
`
`one Delaware Counsel and at least one Lead
`Counsel per party, participated in a verbal meet-
`and-confer (in person and/or by telephone) on the
`following date(s): ______________________.
`
`Delaware Counsel: ________________________
`
`Lead Counsel: ____________________________
`
`The disputes requiring judicial attention are
`
`listed below:
`
`[provide here a non-argumentative list of disputes
`requiring judicial attention]
`
`On a date to be set by separate order, generally not less
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`than forty- eight (48) hours prior to the conference, the
`
`party seeking relief shall file with the Court a letter, not to
`
`exceed three (3) pages, outlining the issues in dispute and
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`its position on those issues. On a date to be set by separate
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`order, but generally not less than twenty-four (24) hours
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`prior to the conference, any party opposing the application
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`for relief may file a letter, not to exceed three (3) pages,
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`outlining that party’s reasons for its opposition.
`
`– 16 –
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`iii.
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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 17 of 23 PageID #: 165
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`iv.
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`Each party shall submit two (2) courtesy copies of its
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`discovery letter and any attachments.
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`v.
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`Should the Court find further briefing necessary upon
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`conclusion of the telephone conference, the Court will
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`order it. Alternatively, the Court may choose to resolve the
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`dispute prior to the telephone conference and will, in that
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`event, cancel the conference.
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`9.
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`Motions to Amend.
`
`a.
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`Any motion to amend (including a motion for leave to amend) a pleading
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`shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not
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`to exceed three (3) pages, describing the basis for the requested relief, and shall attach the
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`proposed amended pleading as well as a “blackline” comparison to the prior pleading.
`
`b.
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`Within seven (7) days after the filing of a motion in compliance with this
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
`
`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to amend.
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`10. Motions to Strike.
`
`a.
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`Any motion to strike any pleading or other document shall NOT be
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`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to exceed
`
`three (3) pages, describing the basis for the requested relief, and shall attach the document to be
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`stricken.
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`– 17 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 18 of 23 PageID #: 166
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
`
`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to strike.
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`11.
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`Tutorial Describing the Technology and Matters in Issue. Unless otherwise
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`ordered by the Court, the parties shall provide the Court, no later than the date on which their
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`opening claim construction briefs are due, a tutorial on the technology at issue. In that regard,
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`the parties may separately or jointly submit a DVD of not more than thirty (30) minutes. The
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`tutorial should focus on the technology in issue and should not be used for argument. The parties
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`may choose to file their tutorial(s) under seal, subject to any protective order in effect. Each
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`party may comment, in writing (in no more than five (5) pages) on the opposing party’s tutorial.
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`Any such comment shall be filed no later than the date on which the answering claim
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`construction briefs are due. As to the format selected, the parties should confirm the Court’s
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`technical abilities to access the information contained in the tutorial (currently best are “mpeg”
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`or “quicktime”).
`
`12.
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`Claim Construction Issue Identification. On May 4, 2018, the parties shall
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`exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint
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`Claim Construction Chart to be submitted on May 18, 2018. The parties’ Joint Claim
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`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue,
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`– 18 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 19 of 23 PageID #: 167
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`and should include each party’s proposed construction of the disputed claim language with
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`citation(s) only to the intrinsic evidence in support of their respective proposed constructions. A
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`copy of the patent(s) in issue as well as those portions of the intrinsic record relied upon shall be
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`submitted with this Joint Claim Construction Chart. In this joint submission, the parties shall not
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`provide argument.
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`13.
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`Claim Construction Briefing. The parties shall contemporaneously submit initial
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`briefs on claim construction issues on June 22, 2018. The parties’ answering/ responsive briefs
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`shall be contemporaneously submitted on July 27, 2018. No reply briefs or supplemental papers
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`on claim construction shall be submitted without leave of the Court. Local Rule 7.1.3(4) shall
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`control the page limitations for initial (opening) and responsive (answering) briefs.
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`14.
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`Hearing on Claim Construction. Beginning at ___________ on
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`________________ [on or near Sept. 10, 2018], the Court will hear argument on claim
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`construction. The parties shall notify the Court, by joint letter submission, no later than the date
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`on which their answering claim construction briefs are due: (i) whether they request leave to
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`present testimony at the hearing; and (ii) the amount of time they are requesting be allocated to
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`them for the hearing.
`
`Provided that the parties comply with all portions of this Scheduling Order, and any other
`
`orders of the Court, the parties should anticipate that the Court will issue its claim construction
`
`order within sixty (60) days of the conclusion of the claim construction hearing. If the Court is
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`unable to meet this goal, it will advise the parties no later than sixty (60) days after the
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`conclusion of the claim construction hearing.
`
`15.
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`Interim Status Report. On November 30, 2018, counsel shall submit a joint letter
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`to the Court with an interim report on the nature of the matters in issue and the progress of
`
`– 19 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 20 of 23 PageID #: 168
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`discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status
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`conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of the
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`Court, no later than October 19, 2018, the parties must finally supplement, inter alia, the
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`identification of all accused products and of all invalidity references.
`
`17.
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`18.
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`Case Dispositive Motions. The Court will not hear case dispositive motions.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion filed with the Clerk. Any non-dispositive motion should
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`contain the statement required by Local Rule 7.1.1.
`
`19.
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`Pretrial Conference. On September 27, 2019, the Court will hold a pretrial
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`conference in Court with counsel beginning at _______________. Unless otherwise ordered
`
`by the Court, the parties should assume that filing the pretrial order satisfies the pretrial
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`disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with
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`the Court the joint proposed final pretrial order with the information required by the form of
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`Revised Final Pretrial Order – Patent, which can be found on the Court’s website
`
`(www.ded.uscourts.gov), on or before September 20, 2019. Unless otherwise ordered by the
`
`Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for
`
`the preparation of proposed final pretrial order.
`
`The parties shall provide the Court two (2) courtesy copies of the joint proposed final
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`pretrial order and all attachments.
`
`As noted in the Revised Final Pretrial Order – Patent, the parties shall include in their
`
`joint proposed final pretrial order, among other things:
`
`– 20 –
`
`

`

`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 21 of 23 PageID #: 169
`
`a.
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`a request for a specific number of hours for their trial presentations, as
`
`well as a requested number of days, based on the assumption that in a typical bench trial day
`
`there will be 6 to 7 hours of trial time;
`
`b.
`
`their position as to whether the Court should allow objections to efforts to
`
`impeach a witness with prior testimony, including objections based on lack of completeness
`
`and/or lack of inconsistency;
`
`c.
`
`their position as to whether the Court should rule at trial on objections to
`
`expert testimony as beyond the scope of prior expert disclosures, taking time from the parties’
`
`trial presentation to argue and decide such objections, or defer ruling on all such objections
`
`unless renewed in writing following trial, subject to the proviso that a party prevailing on such a
`
`post-trial objection will be entitled to have all of its costs associated with a new trial paid for by
`
`the party that elicited the improper expert testimony at the earlier trial; and
`
`d.
`
`their position as to how to make motions for judgment as a matter of law,
`
`whether it be immediately at the appropriate point during trial or at a subsequent break and
`
`whether such motions may be supplemented in writing.
`
`20. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
`
`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
`
`request and any response shall contain the authorities relied upon; each in limine request may be
`
`supported by a maximum of three (3) pages of argument and maybe opposed by a maximum of
`
`three (3) pages of argument, and the side making the in limine request may add a maximum of
`
`one (1) additional page in reply in support of its request. If more than one party is supporting or
`
`opposing an in limine request, such support or opposition shall be combined in a single three (3)
`
`– 21 –
`
`

`

`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 22 of 23 PageID #: 170
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`page submission (and, if the moving party, a single one (1) page reply), unless otherwise ordered
`
`by the Court. No separate briefing shall be submitted on in limine requests, unless otherwise
`
`permitted by the Court.
`
`21.
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`Trial. This matter is scheduled for [Plaintiffs: an 8-day / Defendants: a 10-day]
`
`bench trial beginning at 8:30 a.m. on October 28, 2019, with the subsequent trial days beginning
`
`at 8:30 a.m. The trial day will end no later than 5:00 p.m. each day.
`
`22.
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`Post-Trial Briefing. The parties will address the post-trial briefing schedule and
`
`page limits in the proposed final pretrial order.
`
`23.
`
`Effect of Schedule in Co-Pending Litigation. A substantively identical action
`
`involving defendant Mylan Pharmaceuticals Inc. is pending in the U.S. District Court for the
`
`Northern District of West Virginia. See Bristol-Myers Squibb Co. v. Mylan Pharm. Inc., No.
`
`1:17-cv-55-IMK (N.D. W. Va.). Scheduling discussions in that matter are occurring
`
`contemporaneously with the discussions in these Delaware actions.
`
` Plaintiffs’ Position: Plaintiffs have argued before the West Virginia court that the
`
`West Virginia action should be stayed in favor of the Delaware action and, thus, that
`
`no schedule should be set in the West Virginia case. If that position is not adopted, it
`
`is Plaintiffs’ position that the case schedule in the West Virginia action should be no
`
`shorter than the case schedule entered in the Delaware action and that trial in the
`
`West Virginia action should not occur before trial in the Delaware action.
`
`Accordingly, in the event that the West Virginia court adopted a shorter schedule than
`
`the one in these cases or one that results in a trial in the West Virginia action before a
`
`trial in these cases, Plaintiffs reserve the right to move for an Amended Scheduling
`
`Order in these cases.
`
`– 22 –
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`

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`Case 1:17-cv-00426-LPS Document 18 Filed 09/22/17 Page 23 of 23 PageID #: 171
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` Mylan’s Position: As set forth in its discussions with the Plaintiffs and its briefing in
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`response to Plaintiffs’ motion to stay in the West Virginia action, Mylan is not
`
`opposed to staying the West Virginia action pending any decision finding venue to be
`
`proper or improper in this