Case 1:20-cv-00925-JFB-SRF Document 13 Filed 09/17/20 Page 1 of 22 PageID #: 94
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`HOLOGIC, INC., a Delaware corporation; and
`CYTYC SURGICAL PRODUCTS, LLC, a
`Massachusetts limited liability company,
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`Plaintiffs,
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`v.
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`MINERVA SURGICAL, INC., a Delaware
`corporation,
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`Defendant.
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` C.A. No. 20-925-JFB-SRF
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`SCHEDULING ORDER
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`This ___ day of September, 2020, the Court having conducted an initial Rule 16 scheduling
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`and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule 16.1
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`on September 22, 2020, and the parties having determined after discussion that the matter cannot
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`be resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`I.
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`BACKGROUND OF THIS CASE AND THE RELATED CASE
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`A. Hologic’s Position
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`1. The ’348 Patent Has Been Found Valid And Infringed By Defendant
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`On July 8, 2020, Plaintiffs Hologic, Inc. and Cytyc Surgical Products, LLC (together,
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`“Plaintiffs” or “Hologic”) brought this patent infringement case against Minerva Surgical, Inc.
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`(“Defendant” or “Minerva”). Plaintiffs accuse Defendant of infringing U.S. Patent No. 9,095,348
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`(the “’348 Patent”) arising from, inter alia, the manufacture, use, sale, and offer for sale of
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`Minerva’s Endometrial Ablation System (“EAS”). Complaint ¶¶ 1, 55-61 (“Current Action”).
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`This case involves the same parties and the same patent in an earlier case brought in
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`November 2015 by Plaintiffs against Defendant (Case No. 15-1031-JFB-SRF, the “First
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`Action”). In that case, this Court ruled on summary judgment that Defendant’s EAS product
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`infringed claim 1 of the ’348 Patent. First Action D.I. 407 at 32-34. The Court also found that
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`Defendant was barred from asserting invalidity under the doctrine of assignor estoppel. First
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`Action D.I. 407 at 21-26. The Court also rejected Minerva’s invalidity defenses on the merits,
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`independent of assignor estoppel. Id. In addition, Defendant filed two petitions for inter partes
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`review of the ’348 Patent in the Patent Office. Both of these petitions were denied in toto. First
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`Action D.I. 531 at 5; First Action D.I. 537-1, Exs. 1-2.
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`Following a July 2018 jury trial, the jury awarded lost profits and reasonable royalty
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`damages to Plaintiffs for Defendant’s infringement of the ’348 Patent. The ’348 Patent expired
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`in November 2018.
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`The Court entered judgment on June 3, 2019 against Defendant, which Defendant
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`appealed. On April 22, 2020, the Federal Circuit Court of Appeals affirmed the rulings on
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`infringement and validity relating to the ’348 Patent. The mandate issued on July 29, 2020.
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`2. This Case Should Proceed Expeditiously
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`Most of the relevant issues (except willfulness) have already been resolved:
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`•
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`Infringement: as Plaintiffs allege in the Complaint, the only difference between
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`the original EAS found to infringe in the First Action and the “New Pivot” design
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`accused in this case is an insubstantial change to the pivot in the handle of the
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`handpiece. Complaint ¶¶ 36, 42; see also Defendant’s Answer ¶ 37.
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`•
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`Invalidity: Defendant already filed two petitions for inter partes review, which
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`were denied. Defendant was barred by assignor estoppel from challenging
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`invalidity in the First Action; this was affirmed by the Federal Circuit. But even
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`absent assignor estoppel, all of Defendant’s other invalidity defenses were also
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`rejected by the Court in the First Action; this was also affirmed by the Federal
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`Circuit.
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`• Damages: the jury awarded lost profits and reasonable royalty damages yielding
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`an effective royalty rate of about 16.1%. This was also affirmed.
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`The issue of infringement of the New Pivot design should be decided immediately on summary
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`judgment, and the case should then proceed to a trial only on Defendant’s willfulness. While the
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`summary judgment briefing is pending, the parties can conduct limited discovery on willfulness.
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`Defendant’s request to stay the case pending its petition for certiorari in the First Action
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`should be rejected. There is no reason why the parties cannot brief the issue of infringement of
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`the New Pivot device and conduct discovery on willfulness while the petition is pending. Also
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`pointless to wait for the Supreme Court to decide a certiorari petition on assignor estoppel when
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`Defendant’s defenses were also rejected by the district court on the merits, independently of
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`assignor estoppel. Furthermore, petitions for certiorari are rarely granted, and Defendant’s
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`petition is particularly likely to be denied, as the Federal Circuit already declined to hear the
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`issue en banc. Defendant’s plea that its case against Hologic should go to trial first is baseless
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`because it was Defendant who requested the stay of its own action. Defendant’s suggestion that
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`it was forced to stay the matter due to COVID is misleading; while COVID justified moving the
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`trial date, Defendant did not seek only to move the trial date—it sought to stay everything,
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`including trial preparation. Thus, Defendant’s case is held up by its own choice, which should
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`not be imposed on Hologic here.
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`B. Minerva’s Position
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`1. The Validity of ’348 Patent is Currently on Appeal and the Accused
`Product in This Action Has Not Been Found to Infringe
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`The current action (hereinafter referred to in Minerva’s portions as this “Third Action”) is
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`the third patent lawsuit between the parties in this district. This Third Action involves the same
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`patent Hologic asserted in the First Action: the ’348 Patent. However, in the First Action, Hologic
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`only accused of infringement Minerva’s Endometrial Ablation System with an original handpiece
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`design (“Original EAS”). In this Third Action, Hologic accuses a different product of
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`infringement; namely Minerva’s Endometrial Ablation System with a redesigned handpiece
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`(“Redesigned EAS”). The Redesigned EAS was not an accused product in the First Action, and
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`therefore there was no finding by the court of infringement as to that product, and the issue of
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`damages regarding the Redesigned EAS, for example, was not before the jury in the First Action.
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`Instead, during the First Action, Minerva disclosed a prototype of the Redesigned EAS as a non-
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`infringing alternative for purposes of damages regarding only the Original EAS. First Action, D.I.
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`300 at 44. (“Minerva is relying on a redesign of its handle as a non-infringing alternative for
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`purposes of damages”).
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`In the First Action, the Court’s Summary Judgment Ruling was limited to the Original
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`EAS. Likewise, the jury awarded damages and the Court entered judgment on the Original EAS
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`only. The effective royalty rate Hologic provides was applied to the Original EAS, a product that
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`is not at issue in this Current Action. Following an appeal to the Federal Circuit, the Federal
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`Circuit issued its mandate on July 29, 2020. First Action, D.I. 635. Hologic incorrectly
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`characterizes the Federal Circuit’s decision in the First Action as addressing the merits of
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`Minerva’s invalidity defenses. The Federal Circuit only reached the issue of assignor estoppel, not
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`the merits of any invalidity defense. Hologic, Inc. v. Minerva Surgical, Inc., 957 F.3d 1256, 1269
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`(Fed. Cir. 2020) (“Because the district court did not abuse its discretion in applying the doctrine
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`of assignor estoppel, we affirm the district court's grant of summary judgment of no invalidity as
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`to claim 1 of the '348 patent.”) The deadline for the parties to file any petition for certiorari with
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`the Supreme Court is December 21, 2020. See 03/19/20 Supreme Court Order (deadline for
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`petition extended 150 days). However, as Minerva previously informed the Court on August 26,
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`2020—and as Hologic neglects to mention—Minerva plans to file its petition for certiorari even
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`earlier than required; specifically, by October 1, 2020. First Action, D.I. 643 at 2. Accordingly,
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`in response to Hologic’s premature request to allow execution of the amended judgment from the
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`First Action, on August 28, 2020, Judge Bataillon, recognizing that all appeals with respect to the
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`’348 Patent have not yet been exhausted, stayed “[a]ny and all actions and proceedings to execute
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`on the Court’s Amended Final Judgment . . . pending the filing and resolution of a petition for a
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`writ of certiorari to the Supreme Court or the expiration of the time in which to seek such relief.”
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`First Action, D.I. 646. The same logic applies here. Until all appeals with respect to the ’348
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`Patent have been exhausted, it cannot be determined exactly what issues would arise in this action,
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`if any. Consequently, Hologic’s proposal to rush this particular case to trial on what is effectively
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`an expedited basis is strikingly premature. Notably, as Hologic admits, the ’348 Patent at issue
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`expired years ago on November 19, 2018. Thus, Hologic is not entitled to any injunctive relief in
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`this action. Moreover, even in Hologic’s best case scenario, the damages it could pursue are
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`significantly less than the cost of litigating this matter since the Redesigned EAS was only sold
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`for less than five months in 2018 before the ’348 Patent expired. There is no question that since
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`the expiration of the ’348 patent nearly two years ago, that Minerva remains free today to market
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`and sell its Redesigned EAS. Thus, there is no prejudice to Hologic in taking the more pragmatic
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`approach of holding off setting a schedule and staying this matter for now until the final appeal in
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`the First Action is resolved. Indeed, doing so would avoid extraordinary confusion in the event
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`the Supreme Court grants Minerva’s Petition; and if not, then the parties should know in only a
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`few months, at which time the parties and the court can revisit this issue of the schedule.
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`Minerva’s appeal in the First Action involves whether assignor estoppel should apply in
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`this case and whether Minerva can challenge the validity of the ’348 patent in the district court
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`litigation. In short, the very same patent Hologic asserts in this case remains on appeal in the First
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`Action and the resolution of that appeal could significantly alter the issues that may (or may not)
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`need to be litigated in this case. There is also a new and different basis for Minerva’s claims of
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`non-infringement based on the redesign than were at issue in the First Action. Nor does Hologic
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`explain why, if at the end of the day the ’348 remains valid, the issues of at least infringement and
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`damages with respect to the Redesigned EAS would not need to be litigated.
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`Lastly, Minerva’s own offensive patent case against Hologic filed on April 11, 2017
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`precedes this case and remains pending between Hologic and Minerva in this District; namely,
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`Case No. 1:18-cv-00217 (“Second Action”). In the Second Action, Minerva asserted a patent of
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`its own against one of Hologic’s endometrial ablation product lines. Trial in the Second Action
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`was on track to begin last July 20, 2020. But on April 7, 2020 (approximately four months
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`before trial), this Court stayed the Second Action on the parties’ stipulation based on the
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`circumstances surrounding the COVID-19 pandemic, including this Court’s own decisions to
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`postpone jury trials. Second Action, D.I. 310 and April 7, 2020 Order approving D.I. 310. Thus,
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`once it is feasible to do so, a trial in Minerva’s offensive case logically should be set ahead of the
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`Current Action, since Minerva’s case was only approximately four months from trial and was
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`delayed through no fault of the parties, but only due to the extraordinary circumstances
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`surrounding the pandemic. A further Joint Status Report to Judge Bataillon in the Second Action
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`is currently due on September 25, 2020. Second Action, D.I. 312 and July 27, 2020 Order
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`approving D.I. 312. Minerva submits that it is more logical to set a trial date in this matter only
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`after Judge Bataillon resets a trial date for the Second Action, which is earlier in the queue and
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`closer to trial as far as preparations.
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`Hologic incorrectly argues the Second Action was held up by Minerva’s own choice and
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`that pandemic did not justify staying the Second Action. Hologic agreed to the stay and
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`stipulated in writing that due to the pandemic “the parties are severely impacted in their abilities
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`to prepare for trial, including inability to travel and meet in-person.” Second Action, D.I. 310 at
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`1. For Hologic to now suggest that it intended to proceed with trial preparation—or that it even
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`would have been feasible—is simply inaccurate.
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`II.
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`BACKGROUND OF THE ACCUSED PRODUCT
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`A. Hologic’s Position
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`1. The Issues In This Case Should Have Been Tried In The First Action, But
`For Defendant’s Concealment Of Its Commercialization Of Its “New
`Pivot” Device
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`Plaintiffs accuse Defendant’s redesigned “New Pivot” EAS product of infringing the
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`’348 Patent. Complaint ¶¶ 35-43, 55-61. The “New Pivot” moniker arises from Defendant’s
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`patent counsel’s own labeling of a prototype produced in the First Action, which had “New
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`Pivot” handwritten on the handle. Complaint ¶ 37. Plaintiffs allege that the New Pivot EAS is
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`substantially the same as the EAS device from the First Action. Indeed, Plaintiffs already
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`provided testimony from their expert establishing infringement at the July 2018 trial in the First
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`Action. First Action D.I. 509 at 931:11-936:10. Defendant did not rebut this evidence at the
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`time, but it now denies infringement.
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`Defendant developed its New Pivot device in 2016. Defendant’s Answer ¶ 36. Although
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`Defendant relied on a prototype of the New Pivot device in the First Action as a proposed non-
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`infringing alternative, Defendant’s Answer ¶ 43, it insisted in a June 22, 2018 pleading that the
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`New Pivot was not being commercialized and, therefore, was not an accused product. On June
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`28, 2018, the Court declined to decide summary judgment relating to the New Pivot device because
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`the New Pivot device was “not being marketed.” First Action D.I. 407 at 29.
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`On the same day as the Court’s decision, however, Defendant began commercializing the
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`New Pivot design, but Defendant never told the Court or Plaintiffs. Defendant’s Answer ¶ 50. To
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`the contrary, after Plaintiffs showed infringement via their expert at the trial in July 2018,
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`Defendant agreed to withdraw the prototype from the case as a non-infringing alternative without
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`clarifying to the Court that it had already begun to commercialize the New Pivot handle. First
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`Action D.I. 511 at 1502:15-1503:22. Had it done so, the New Pivot device would have been part
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`of the First Action and this case would never have been brought.
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`Defendant admits the relevant timeline of events in its Answer:
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`• “[I]n the First Action, [Minerva] produced in discovery physical protypes of the
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`redesigned Minerva EAS handpiece and related documents to show that it was a
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`non-infringing design option as to the asserted ’348 Patent claims.” Defendant’s
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`Answer ¶ 45.
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`• “[O]n June 20, 2018, after the close of discovery, Plaintiffs filed a letter with the
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`Court requesting documents regarding Minerva’s design-around, prototype
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`handpiece for the accused product, including communications with the FDA
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`regarding the status of any application for approval to market the prototype
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`handpiece.” Defendant’s Answer ¶ 48.
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`• “[O]n June 22, 2018 it correctly objected to this improper discovery because, at
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`the time, the new design was not (and could not be) accused by Plaintiffs of
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`infringement, as it was not currently in the market.” Defendant’s Answer ¶ 48.
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`• “[T]he Court ruled on the parties’ summary judgment motions on June 28, 2018”
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`and that “the Court agreed ‘with Hologic’s position that a ruling on the purported
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`handle redesign would be an improper advisory opinion since the product is not
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`being marketed and is not alleged to be infringing Hologic’s patent.’”
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`Defendant’s Answer ¶ 50.
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`• “[Defendant] started shipping its redesigned Minerva EAS handpiece starting on
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`June 28, 2018.” Defendant’s Answer ¶ 50.
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`B. Minerva’s Position
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`1. The Issues in This Case Regarding the Redesigned EAS Were Not Tried in
`the First Action and Hologic’s Allegations of Concealment are Baseless
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`This Third Action involves the Redesigned EAS—a product that Hologic misleadingly
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`refers to as the “New Pivot” EAS product. Hologic incorrectly claims Minerva’s “patent counsel”
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`labelled a prototype of the Redesigned EAS a “New Pivot” in the First Action. Minerva denied
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`that allegation in its answer. D.I. 10 at 37. In the First Action, Minerva produced evidence of the
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`protype for the Redesigned EAS that is missing the claimed limitation of grips “pivotally attached
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`to one another at a pivot point” and, for that reason, was a non-infringing alternative design
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`available to Minerva for purposes of the damages analysis for the Original EAS. In the First
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`Action, Minerva elicited proof at trial that Hologic’s amendment during prosecution adding the
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`“pivot point” limitation above to its claims in order to overcome a prior art rejection by the
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`Examiner was the sole reason the claims were allowed.
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`On June 28, 2018, almost three months after summary judgment briefing was completed
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`in the First Action—and more than a year after fact discovery closed—Minerva began shipping its
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`Redesigned EAS that did not have grips “pivotally attached to one another at a pivot point,” and
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`therefore did not infringe the claims of the ’348 patent. Hologic is simply incorrect in arguing
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`Minerva “insisted in a June 22, 2018 pleading that the New Pivot was not being commercialized
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`and, therefore, was not an accused product.” Instead, Minerva explained correctly in a letter
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`regarding a discovery dispute: “The new design is not (and cannot be) accused by Hologic of
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`infringement, as it is not currently in the market.” First, Action D.I. 406 at 2. As to the court’s
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`summary judgment ruling in the First Action, Hologic fails to mention that the court’s ruling was
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`based on “Hologic’s position that a ruling on the purported handle redesign would be an improper
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`advisory opinion since the product is not being marketed and is not alleged to be infringing
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`Hologic’s patent.” First Action, D.I. 407 at 29.
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`Minerva ultimately elected not to rely on the prototype of the Redesigned EAS at trial in
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`the First Action and therefore neither the prototype nor the Redesigned EAS were before the jury
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`in the First Action. Accordingly, the issues of infringement and damages as to the Redesigned
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`EAS have not been litigated. Thus, the situation is not as simplistic as Hologic’s proposed schedule
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`presumes.
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`As noted above, the Redesigned EAS shipped for less than five months before the ’348
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`Patent expired on November 19, 2018. Thus, in this Third Action, Hologic cannot seek injunctive
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`relief and is limited to pursuing at best only a fixed amount of only past monetary damages. There
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`can be no dispute that since November 19, 2018, Minerva remains free to continue to market and
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`sell is Redesigned EAS. Consequently, awaiting the outcome of the currently pending appeal
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`process would not only be in the interest of judicial efficiency, but would cause no prejudice to
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`Hologic in the current market.
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`II.
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`THE ISSUES IN THE CURRENT ACTION
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`a.
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`Hologic’s Position
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`Plaintiffs assert that liability and damages have largely been decided in the First Action.
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`In particular, Plaintiffs assert that Defendant is precluded by assignor estoppel from challenging
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`validity, that Defendant would be precluded from challenging validity by collateral estoppel even
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`absent assignor estoppel (because Defendant lost its validity challenge on the merits in the First
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`Action), and that summary judgment of infringement should be decided now, following a limited
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`briefing schedule. Assuming the Court decides the infringement issue on summary judgment,
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`Plaintiffs assert that the only issue that should be tried is the question of willfulness and that no
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`discovery needs to be taken except on the issue of willfulness.
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`b.
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`Minerva’s Position
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`Defendant asserts that it is premature for the Court to consider a schedule and/or what
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`issues need to be litigated in this case at least until the appeal to the Supreme Court has been
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`exhausted in the First Action, where the asserted ’348 Patent is the sole asserted patent.
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`Furthermore, the Second Action (Minerva’s patent case against Hologic) should proceed to trial
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`before this Third Action, at least because the Second Action has been pending for more than three
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`years and was four months away from trial when the case was stayed as stipulated to by both
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`parties due to the pandemic.
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`The expedited summary judgment and trial schedule Hologic proposed in this Third Action
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`not only risks inefficiency because the appeals have not been exhausted, but would prejudice
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`Minerva in that the next trial between the parties is rightfully Minerva’s offensive case (the Second
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`Action). The ’348 Patent expired in November of 2018 and Hologic can only seek monetary
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`damages on less than half a year of sales of the Redesigned EAS. Moreover, Hologic’s proposal
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`is unworkable because contrary to Hologic’s suggestions liability and damages have not been
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`decided as to the Redesigned EAS. The First Action involved a different accused product: the
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`Original EAS. Thus, discovery and a trial will be needed in this Third Action on at least liability
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`and damages. Furthermore, the resolution of Minerva’s appeal in the First Action stands to
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`dramatically affect the issues that need to be litigated in this Third Action. Contrary to Hologic’s
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`suggestion, the merits of Minerva’s validity defenses have not been addressed on appeal. Thus,
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`the parties and the Court should revisit the case schedule and issues to be litigated after the
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`resolution of a petition for a writ of certiorari to the Supreme Court in the First Action or the
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`expiration of the time in which to seek such relief.1
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`III.
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`PROPOSED ORDER
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`a.
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`Hologic’s Proposed Order
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`IT IS ORDERED that:
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`1.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join
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`other parties, and to amend or supplement the pleadings shall be filed on or before December 17,
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`2020.
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`2.
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`Discovery. All discovery exchanged in the First Action is deemed to have been
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`exchanged in the Current Action and may be used for any purposes in this action as if the discovery
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`had been provided in this action.
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`1 Minerva reserves the right to re-address the various case management dates and limits below if
`its proposal to await final resolution of the pending appeal before setting a reasonable schedule is
`adopted, since only then will the parties know what if any issues remain to be tried.
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`Any further discovery in this case is limited to the issue of willfulness. All discovery in
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`this case shall be initiated so that it will be completed on or before December 2, 2020.
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`a.
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`Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties, the
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`parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)
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`within five (5) days of the date of this Order.
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`b.
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`E-Discovery Default Standard. If they have not already done so, the parties are to
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`review the Default Standard for Discovery of Electronic Documents, which is posted on Magistrate
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`Judge Fallon’s section of the Court’s website (http://www.ded.uscourts.gov) under the
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`“Guidelines” tab, and is incorporated herein by reference with the exception of the following
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`deadlines:
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`i. By September 23, 2020, Plaintiffs will provide disclosures under Default
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`Standard for Discovery, Paragraph 4.a.
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`ii. The parties agree that the accused New Pivot device commercialized by
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`Minerva is materially the same as the prototype device provided in the First Action.
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`For this reason, Defendant does not need to provide a Core Technical Document
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`production under Default Standard for Discovery, Paragraph 4.b.
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`iii. By October 14, 2020, Plaintiffs will provide disclosures under Default
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`Standard for Discovery, Paragraph 4.c.
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`iv. Because Defendant is estopped from asserting invalidity, Defendant
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`need not provide disclosures under Default Standard for Discovery, Paragraph 4.d.
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`c.
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`Document Production. Document production regarding willfulness shall be
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`completed on or before October 30, 2020.
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`d.
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`Interrogatories. A maximum of 2 interrogatories shall be served by each party to
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`any other party regarding willfulness.
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`e.
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`Requests for Admission. A maximum of 20 requests for admission shall be served
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`by each party to any other party.
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`f.
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`Depositions.
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`i.
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`Timing. In the absence of agreement among the parties or by order
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`of the court, no deposition (other than those noticed under Fed. R. Civ. P. 30(b)(6)) shall be
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`scheduled prior to the completion of document production.
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`ii.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a maximum of 15 hours for taking fact depositions and a maximum four persons.
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`iii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court. A defendant who becomes a
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`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. In view of the COVID pandemic, deposition
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`may be taken by videoconference.
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`g.
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`Disclosure of Expert Testimony. The expert reports from the First Action are
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`deemed to have been served in this action, and the experts may testify in this action based on those
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`reports. No additional expert reports are required in this present case.
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`h.
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`Fact Witnesses to be Called at Trial.
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`i.
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`By January 4, 2021, each party shall serve on the other parties a list
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`of each fact witness (including any expert witness who is also expected to give fact testimony),
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`who has previously been disclosed during discovery and that it intends to call at trial.
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`ii.
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`By January 11, 2021, each party shall serve a list of each rebuttal
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`fact witness that it intends to call at trial.
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`iii.
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`The parties shall have the right to depose any such fact witnesses
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`who have not previously been deposed in this case. Such deposition shall be held by January 20,
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`2021, and shall be limited to three (3) hours per side in the aggregate unless extended by agreement
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`of the parties or upon order of the court upon good cause shown.
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`i.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Should counsel find they are unable to resolve a discovery matter or
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`those other matters covered by this paragraph,2 the moving party (i.e., the party seeking relief from
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`the Court) shall file a “[Joint] Motion for Teleconference To Resolve [Protective Order or
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`Discovery] Dispute.” The suggested text for this motion can be found in Magistrate Judge Fallon’s
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`section of the Court’s website in the “Forms” tab, under the heading “Discovery Matters–Motion
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`to Resolve Discovery Disputes.”
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`ii.
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`The Court will thereafter order a discovery telephone conference
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`and deadlines for submissions. On the date set by the Court, generally not less than seventy-two
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`(72) hours prior to the conference, excluding weekends and holidays, the party seeking relief shall
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`file with the Court a letter, not to exceed four (4) pages, in no less than 12-point font, outlining the
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`2 Counsel are expected to verbally discuss the issues/concerns before seeking the Court’s
`intervention.
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`issues in dispute and its position on those issues. This submission shall include a proposed order,
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`attached as an exhibit, setting out the nature of the relief requested.
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`iii.
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`On the date set by the Court, generally not less than forty-eight (48)
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`hours prior to the conference, excluding weekends and holidays, any party opposing the
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`application for relief may file a letter, not to exceed four (4) pages, in no less than 12-point font,
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`outlining that party’s reason for its opposition.
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`iv.
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`Two (2) courtesy copies of the letters are to be hand delivered to the
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`Clerk’s Office within one hour of e-filing. All courtesy copies shall be double-sided.
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`v.
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`Should the Court find further briefing necessary upon conclusion of
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`the telephone conference, the Court will order it.
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`vi.
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`Disputes or issues regarding protective orders, or motions for
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`extension of time for briefing case dispositive motions which are related to discovery matters are
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`to be addressed in accordance with this paragraph.
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`3.
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`Application to Court for Protective Order. The Protective Order in the First
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`Action applies in the Current Action as if entered herein.
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`4.
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`Papers Filed Under Seal. When filing papers under seal, counsel should deliver
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`to the Clerk an original and one (1) copy of the papers. In accordance with section G of the
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`Administrative Procedures Governing Filing and Service by Electronic Means, a redacted version
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`of any sealed document shall be filed electronically within seven (7) days of the filing of the sealed
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`document.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
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`of all briefs and one (1) courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits, etc.). This provision also applies to papers filed
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`under seal.
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`6.
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`ADR Process. This matter will be discussed during the Rule 16 scheduling
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`conference.
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`7.
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`Interim Status Report. On December 9, 2020, counsel shall submit a joint interim
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`report to the Court on the nature of the matters in issue and the progress of discovery to date.
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`8.
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`Status Conference. On December 16, 2020, the Court will hold a Rule 16(a), (b)
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`and (c) conference by telephone with counsel beginning at 1:00 p.m. Plaintiff’s counsel shall
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`initiate the telephone call. At the time of this conference, counsel shall also be prepared to discuss
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`the progress, if any, of settlement discussions and shall be prepared to discuss the possibility of
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`setting up a settlement conference with the Court, counsel and their clients. If all parties agree that
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`there is nothing to report, nor anything to