Plaintiff,
`
`
`LIFE SPINE, INC.,
`
`
`v.
`
`Defendant.
`
`
`
`
`
`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 1 of 12 PageID #: 1034
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`GLOBUS MEDICAL, INC.,
`
`
`C.A. No. 21-1445 (JPM)
`
`JURY TRIAL DEMANDED
`
`JOINT PLANNING REPORT AND PROPOSED SCHEDULE
`
`Pursuant to Local Rule 16.1, a scheduling conference was held on March 17, 2022. Present
`
`were Eve Ormerod, Mark Hatch-Miller, and Geng Chen, counsel for plaintiff, and Jennifer Ying,
`
`Dave Nelson, Brianne Straka, and Rajat Khanna, counsel for defendant. Prior to the scheduling
`
`conference, on March 10, 2022, the parties met and conferred in compliance with Federal Rule of
`
`Civil Procedure 26(f). The following dates are established as the final deadlines for:
`
`INITIAL DISCLOSURES PURSUANT TO FED. R. CIV. P. 26(a)(1): See Proposed Schedule
`
`PATENT RELATED DISCLOSURES:
`Proposed Schedule:
`LPR
`
`
`
`
`
`Description
`Parties Submit Proposed
`Protective Order
`Identification by Plaintiff of
`Additional Accused Products
`and Asserted Patents for
`Phase 2 Initial Disclosures
`
`
`
`
`
`Applicable Text
`
`Date
`
`4/1/2022
`
`3/25/2022
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 2 of 12 PageID #: 1035
`
`LPR
`
`Description
`Initial Disclosures (Phase 1
`disclosures related to (1)
`Prolift, Prolift Lateral, and
`Prolift Lateral Fixated
`accused products, (2)
`Asserted Patents (including
`file histories, and conception
`and reduction to practice
`documents), and (3) any
`products Plaintiff contends
`embodies the Asserted
`Patents)
`Initial Disclosures (Phase 2
`disclosures related to
`Additional Accused
`Products)
`Initial Infringement
`LPR 3.1-3.2
`Contentions
`LR, App’x H Motions to Amend Pleadings
`or Join Parties
`
`FRCP
`26(a)(1)
`
`FRCP
`26(a)(1)
`
`LPR 3.3-3.4
`
`Initial Noninfringement
`Contentions
`
`LPR 3.5-3.6
`
`Initial Invalidity and
`Unenforceability Contentions
`
`LPR 3.7
`
`Initial Validity and
`Enforceability Contentions
`
`LPR 4.1(a)
`
`LPR 4.1(c)
`
`LPR 4.2(a)-
`(b)
`
`Preliminary Identification of
`Claim Terms to Be
`Construed
`Final Identification of
`Claim Terms to Be
`Construed
`Preliminary Claim
`Constructions and Supporting
`Material
`
`
`
`2
`
`Applicable Text
`
`Date
`
`14 days after the PSC
`
`4/7/2022
`
`
`
`within 21 days after
`the RP is filed
`60 days after the PSC
`within 28 days after
`service of the Initial
`Infringement
`Contentions
`within 90 days after
`the RP is filed
`within 21 days after
`service of the Initial
`Invalidity and
`Unenforceability
`Contentions
`within 95 days after
`the RP is filed
`
`within 115 days after
`the RP is filed
`within 14 days after
`the exchange of 4.1(c)
`lists
`
`4/21/2022
`
`5/6/2022
`
`5/16/2022
`
`N/A
`
`
`7/8/2022
`
`N/A
`
`7/15/2022
`
`7/22/2022
`
`8/5/2022
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 3 of 12 PageID #: 1036
`
`LPR
`
`LPR 4.3(a)
`
`Description
`Initial Expert Claim
`Construction Reports (If
`Any)
`
`LPR 4.3(b)
`
`LPR 4.3(c)
`
`Rebuttal Expert Claim
`Construction Reports (If
`Any)
`Completion of Expert Claim
`Construction Discovery (e.g.,
`Any Depositions of Claim-
`Construction Experts, if Any)
`
`
`LPR 4.2(c)
`
`Exchange Final Claim
`Constructions
`
`LPR 4.4(a)
`
`Opening Claim Construction
`Briefs
`
`LPR 4.4(b)
`
`Responsive Claim
`Construction Briefs
`
`
`
`Deadline for Mediation
`
`LPR 4.5
`
`Joint Claim Construction and
`Prehearing Statement
`
`LPR 4.6
`
`LPR 4.8
`
`
`
`Claim Construction Hearing
`(“CCR”) and Technology
`Tutorial
`
`Production of Written
`Advice of Counsel
`Parties Exchange Initial
`Privilege Logs
`
`Applicable Text
`within 14 days after
`the exchange of
`Preliminary Claim
`Constructions
`within 14 days after
`disclosure of Initial
`Expert Claim
`Construction Reports
`within 14 days after
`the disclosure of
`Rebuttal Expert Claim
`Construction Reports
`within 7 days after the
`Completion of Expert
`Claim Construction
`Discovery pursuant to
`LPR 4.3(c), or 50 days
`after the exchange of
`Preliminary Claim
`Constructions
`within 14 days after
`exchanging Final
`Claim Constructions
`within 30 days after
`the Opening Claim
`Construction Briefs
`are filed
`
`within 7 days after the
`Responsive Claim
`Construction Briefs
`are filed
`within 30 days after
`the Responsive Claim
`Construction Briefs
`are filed
`at least 90 days prior
`to the close of fact
`discovery
`
`
`Date
`
`8/19/2022
`
`9/1/2022
`
`9/16/2022
`
`9/23/2022
`
`10/7/2022
`
`11/11/2022
`
`TBD
`
`11/18/2022
`
`12/16/2022 or
`at the
`convenience
`of the Court
`14 days after
`CCR
`
`TBD
`
`
`
`3
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 4 of 12 PageID #: 1037
`
`LPR
`
`
`
`Description
`Court’s Claim Construction
`Ruling (“CCCR”)
`
`
`
`Applicable Text
`
`LPR 3.8(a)
`
`Final Infringement
`Contentions
`
`within 14 days after
`the CCCR is issued
`
`LPR 3.8(b)
`
`Final Noninfringement
`Contentions
`
`within 14 days after
`the CCCR is issued
`
`LPR 3.8(b)
`
`Final Invalidity and
`Unenforceability
`Contentions
`
`within 14 days after
`the CCCR is issued
`
`LPR 4.7
`
`Close of Fact Discovery
`
`no later than 30 days
`after CCCR
`
`Date
`There is no
`deadline for
`CCCR
`14 days after
`the CCCR is
`issued
`14 days after
`Final
`Infringement
`Contentions
`14 days after
`Final
`Infringement
`Contentions
`Given the
`number of
`asserted
`patents and
`accused
`products in
`the case, the
`parties believe
`at least 60
`days rather
`than 30 days
`may be
`necessary to
`complete fact
`discovery
`after the
`CCCR
`TBD
`
`LPR 4.7
`
`
`
`LPR 3.8(c)
`
`LPR 5.1(b)
`
`Status Conference
`Final Date to Supplement
`Disclosures, Discovery
`Responses, and Privilege
`Logs.
`Final Validity and
`Enforceability Contentions
`Initial Expert Witness
`Disclosures (Opening
`Expert Reports)
`
`4
`
`
`
`within 30 days of the
`CCCR
`
`within 7 days after the
`close of fact discovery
`
`TBD
`
`within 45 days after
`the CCCR is issued
`
`within 60 days after
`the CCCR is issued
`
`45 days after
`the CCCR is
`issued
`
`TBD
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 5 of 12 PageID #: 1038
`
`LPR
`
`LPR 5.1(c)
`
`
`
`Description
`Rebuttal Expert
`Witness Disclosures
`(Rebuttal Expert Reports)
`Reply Expert Report to
`Address Any Secondary
`Considerations of
`Nonobviousness Raised in
`Rebuttal Expert Reports
`
`LPR 5.2
`
`Completion of
`Depositions of Experts
`
`LPR 6.1
`
`Filing Dispositive Motions
`
`
`
`Filing Daubert Motions
`
`LPR 6.2
`
`Trial
`
`Applicable Text
`within 30 days after
`service of Initial
`Expert Witness
`Disclosures
`
`
`
`within 40 days after
`service of Rebuttal
`Expert Witness
`Disclosures
`within 14 days after
`end of expert
`discovery
`same as Filing
`Dispositive Motions
`within 120 days after
`the deadline for filing
`dispositive motions
`
`Date
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`Proposed Departures: The parties have proposed departures from certain dates set forth
`in the W. D. Tenn. Local Patent Rules to account for the procedural posture of this case,
`which was originally filed on October 13, 2021 in the District of Delaware and reassigned
`to Judge McCalla on January 3, 2022. Given the number of asserted patents and accused
`products in the case, the parties believe at least 60 days rather than 30 days may be
`necessary to complete fact discovery after the CCCR, and subsequent dates should be set
`accordingly based on the close of fact discovery. Furthermore, in order to streamline early
`discovery, the parties agree that initial non-burden contentions (i.e., initial noninfringement
`contentions and initial validity and enforceability contentions) need not be exchanged
`unless required by the Court.
`MOTIONS:
`
`MOTIONS TO JOIN PARTIES: See above
`
`MOTIONS TO AMEND PLEADINGS: See above
`
`MOTIONS TO DISMISS: Defendant filed a partial motion to dismiss on February 9, 2022,
`which will be fully briefed as of March 16, 2022. The parties do not anticipate any additional
`5
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 6 of 12 PageID #: 1039
`
`motions to dismiss.
`
`The parties anticipate filing the following additional motions: The parties anticipate
`that further motion practice may be appropriate depending on the outcome of the
`motion to dismiss now pending as well as any amendment to the pleadings or other
`case developments.
`
`The following issues may be the proper subject of an early motion for summary judgment
`or partial summary adjudication: The parties are not presently aware of any such early
`motions.
`
`
`NATURE OF DISPUTE:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Description of the Field of the Claimed Invention: Expandable spinal implants and
`related methods.
`
`Claims asserted: Globus asserts the claims described in the Amended Complaint as
`well as others to be disclosed by the Initial Infringement Contentions.
`
`Number of Claim Terms to be Construed: Life Spine anticipates requesting the
`construction of certain claim terms. Life Spine will be in a better position to know
`what terms need to be construed once Globus submits its Initial Infringement
`Contentions pursuant to the proposed patent schedule and identifies all claims for
`which is it alleging infringement. Globus does not anticipate requesting the
`construction of certain claim terms but will be in a better position make the
`determination once Life Spine submits its Initial Invalidity and Unenforceability
`Contentions.
`Description of the Allegedly Infringing Activity or Product: Globus contends that
`certain of Life Spine’s ProLift-branded products and related methods infringe the
`Asserted Patents. Life Spine denies Globus’ allegations of infringement of the asserted
`patents. Life Spine has already filed a motion to dismiss Globus’ willful and indirect
`infringement allegations. The motion is fully briefed.
`
`Description of Any Potentially Non-infringing Alternative Designs: Life Spine
`denies infringement, and further contends that, upon further investigation, other non-
`infringing alternative designs, including but not limited to those in the prior art, could
`be achieved without undue cost or delay.
`
`f.
`
`Stipulation of Non-infringement: The parties HAVE NOT stipulated that the above-
`described designs do not infringe the patents in issue.
`
`COMPLETING ALL DISCOVERY: Deadline to be determined following entry of the Court’s Claim
`Construction Ruling (“CCCR”).
`
`WRITTEN DISCOVERY: Non-expert written discovery must be served such that the
`responses are due no later than the close of fact discovery.
`
`
`6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 7 of 12 PageID #: 1040
`
`DEPOSITIONS: Fact depositions must be completed no later than the close of fact discovery.
`Expert depositions to be completed no later than the close of expert discovery.
`
`If the parties anticipate needing to propound interrogatories and/or take depositions in excess
`of the number provided in the Federal Rules of Civil Procedure, set forth the proposed limit
`and basis for the request: N/A
`
`The parties HAVE NOT agreed to an electronic discovery plan. Absent agreement by the
`parties, the default standard for e-discovery set forth in W.D. Tenn. Local Rule 26.1(e)
`applies. The parties anticipate agreeing to the District of Delaware’s Default Standard for
`Discovery, Including Discovery of Electronically Stored Information (“ESI”), with certain
`modifications, and anticipate filing a stipulation for the Court’s approval by April 7, 2022.
`
`The parties anticipate the following discovery issues: None
`
`EXPERT WITNESS DISCLOSURES PURSUANT TO FED. R. CIV. P. 26(a)(2):
`
`DISCLOSURE OF PLAINTIFF’S (OR PARTY WITH BURDEN OF PROOF) RULE
`26(A)(2) EXPERT INFORMATION: Deadline to be determined following entry of the
`CCCR.
`
`DISCLOSURE OF DEFENDANT’S (OR OPPOSING PARTY) RULE 26(A)(2) EXPERT
`INFORMATION: Deadline to be determined following entry of the CCCR.
`
`EXPERT WITNESS DEPOSITIONS: Deadline to be determined following entry of the
`CCCR.
`
`
`MOTIONS TO EXCLUDE EXPERTS UNDER F.R.E. 702/DAUBERT MOTIONS: See above
`deadline for Filing Dispositive Motions.
`
` SUPPLEMENTATION UNDER RULE 26(e)(2): See above deadline for Final Date to Supplement
`Disclosures, Discovery Responses, and Privilege Logs.
`
`FILING DISPOSITIVE MOTIONS: See above deadline for Filing Dispositive Motions
`PROTECTIVE ORDER:
`The parties HAVE NOT agreed to the form Patent Case Protective Order set forth
`a.
`in Appendix A.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`b.
`
`c.
`
`The parties DO plan to submit an alternative proposed protective order for adoption
`by the Court.
`
`Identify any issues the Court should be aware of with respect to the confidentiality
`concerns of the parties: The parties are not aware of any particular confidentiality
`issues at this time.
`
`
`CLAIM CONSTRUCTION HEARING: The parties propose the following format for the Claim
`Construction Hearing:
`
`
`
`7
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 8 of 12 PageID #: 1041
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The parties will confer prior to the Claim Construction Hearing and submit a proposal to
`the Court concerning the below issues within 7 days of the hearing.
`
`a.
`
`Order of presentation: TBD
`
`b.
`
`c.
`
`Anticipated number of witnesses: TBD
`
`Anticipated length of hearing: TBD
`
`ELECTRONIC EXCHANGE: The parties HAVE consented, pursuant to Fed. R. Civ. P.
`5(b)(2)(E), to the electronic exchange of pleadings, notices, discovery, and other mandated
`disclosures not otherwise served electronically via the Court’s Electronic Case Filing system.
`OTHER RELEVANT MATTERS:
`
`The parties have conferred as to whether they will seek discovery of electronically stored
`information (“e-discovery”) and are attempting to reach an agreement regarding e-discovery to
`submit for the Court’s approval, as described above.
`
`Pursuant to agreement of the parties, if privileged or protected information is inadvertently
`produced, the producing party may, by timely notice, assert the privilege or protection and obtain
`the return of the materials without waiver.
`
`No depositions may be scheduled to occur after the discovery deadline. All motions,
`discovery requests, or other filings that require a response must be filed sufficiently in advance of
`the discovery deadline to enable the opposing party to respond by the time permitted by the Rules
`prior to that date.
`
`Prior to filing any Daubert motion or motion to compel discovery, the Parties must first move
`for a telephonic conference with the Court to discuss, outline, and narrow the Daubert- and/or
`discovery-related issues before filing formal motions. Motions to compel discovery are to be filed
`and served by the discovery deadline or within 30 days of the default or the service of the response,
`answer, or objection that is the subject of the motion, if the default occurs within 30 days of the
`discovery deadline, unless the time for filing of such motion is extended for good cause shown, or
`the objection to the default, response, answer, or objection is waived. When the Parties move for a
`telephonic conference concerning Daubert and/or discovery issues, they must set out any relevant
`
`8
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 9 of 12 PageID #: 1042
`
`
`
`
`
`
`
`
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`
`
`
`
`deadlines and provide at least two, mutually agreed on dates and times the telephonic conference
`may take place.
`
`This case is set for a jury trial. The pretrial order deadline, pretrial conference date, and trial
`date will be set by separate Order. The parties anticipate the trial will last approximately 6 days.
`
`The parties are ordered to engage in ADR before the close of discovery. Within 7 days of
`completion of ADR, the parties shall file a notice confirming that the ADR was conducted and
`indicating whether it was successful or unsuccessful, without disclosing the parties’ respective
`positions at the ADR.
`
`Pursuant to W. D. Tenn. Local Rule 7.2(a)(1)(A), all motions, except motions pursuant to
`Fed. R. Civ. P.12, 56, 59, and 60, shall be accompanied by a proposed order in a word processing
`format sent to the ECF mailbox of the presiding judge.
`
`Pursuant to W.D. Tenn. Local Rule 7.2(a)(1)(B), the parties are required to consult prior to
`filing any motion (except motions filed pursuant to Fed. R. Civ. P. 12, 56, 59, and 60).
`
`The opposing party must file a response to any opposed motion. Pursuant to W.D. Tenn.
`Local Rule 7.2(a)(2), a party’s failure to respond timely to any motion, other than one requesting
`dismissal of a claim or action, may be deemed good grounds for granting the motion.
`
`Neither party may file an additional reply to any motion, other than a motion filed pursuant
`to Fed. R. Civ. P. 12(b) or 56. As provided by W.D. Tenn. Local Rule 7.2(c), if a party believes that
`a reply is necessary, it shall file a motion for leave to file a reply accompanied by a memorandum
`setting forth the reasons for which a reply is required within seven days of service of the response.
`Pursuant to W.D. Tenn. Local Rules 12.1(c) and 56.1(c), a party moving for summary judgment or
`to dismiss may file a reply within 14 days after being served with the response in opposition to the
`motion.
`
`
`
`The parties do not consent to trial before the Magistrate Judge.
`
`The parties agree that unless expressly agreed otherwise by counsel in writing or by order of
`the Court, the filing/service deadlines remain 6 pm ET as indicated in the Delaware local rules.
`
`
`
`9
`
`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 10 of 12 PageID #: 1043
`
`Counsel have met and conferred and have made good faith efforts to discuss, in person
`and/ or by telephone, each of the topics listed in Attachment A, and will be prepared to address
`these topics at the Case Management Conference (“CMC”).
`
`This order has been entered after consultation with the parties. Absent good cause shown, the
`deadlines set by this order will not be modified or extended.
`
`IT IS SO ORDERED.
`
` PRESIDING UNITED STATES JUDGE
`
`10
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`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 11 of 12 PageID #: 1044
`
`ATTACHMENT A
`TO JOINT PLANNING REPORT AND PROPOSED SCHEDULE
`
`Counsel have met and conferred and have made good faith efforts to discuss, in person
`and/or by telephone, each of the topics listed in LPR 2.1(b) and in the Checklist below, and will be
`prepared to address these topics at the Scheduling Conference.
`
`Discovery
`
`• What are the core technical documents?
`
`• Does any party intend to request production of electronic mail? If so, why?
`How many custodians should be searched? What methods will be used to search
`for electronic
`documents (e.g., key word searches, predictive coding)?
`
`•
`
`If source code is going to be produced, when, where, and how will it be made available?
`
`Claim Construction
`
`• What are the 1 or 2 most important claim terms requiring construction?
`
`• Should the Court consider a "super-early" limited claim construction hearing on
`those most important terms?
`
`Narrowing the Case
`
`• Will there be any point(s) in the case where it may be appropriate to limit/reduce the
`number of accused devices/functionalities, asserted patents, asserted claims, invalidity
`defenses (including obviousness combinations), and prior art references?
`
`• Are there products that are not colorably different than the currently-accused products
`that Plaintiff expects or Defendant should expect will be added to the case?
`
`• Should damages or any other portion of the case be bifurcated?
`
`Related Cases
`
`• What related cases are pending, in any Court, and what is their filing date and current status?
`
`• Does Plaintiff plan to file additional related cases and, if so, on what schedule and how
`should that plan affect how this case will proceed?
`
`• Has any patent-in-suit been litigated before and how soon is Plaintiff willing to produce the
`results of any such litigation, including settlement agreements?
`
`11
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`

`

`Case 1:21-cv-01445-JPM Document 25 Filed 03/21/22 Page 12 of 12 PageID #: 1045
`
`Remedies
`
`• What initial revenue/ sales information does Plaintiff need to assess the value of the case
`and how soon is Defendant willing to produce such information?
`• What type of relief is Plaintiff seeking: lost profits, reasonable royalties, injunction, and/
`or any other form of relief?
`
`•
`
`If applicable to the case, what does Plaintiff contend is the "smallest saleable unit"?
`
`• Has the patent been licensed or offered for any license and how soon is Plaintiff
`willing to produce licensing information?
`
`Motions to Dismiss/Transfer/Stay
`
`• Have any of these motions been filed and/ or does any party anticipate filing such a motion?
`
`• Will the parties consent to magistrate judge jurisdiction at least for the limited purpose of
`resolving these motions?2
`
`• Should discovery and other exchanges of information be stayed during pendency of these
`motions?
`
`Other Matters
`
`• Are any post-grant review procedures underway or planned that might affect the manner
`in which this case should proceed?
`
`2 The identity of any party or parties declining to consent should not be disclosed to the
`Court at any point, only the fact that there is not unanimous consent.
`
`12
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