Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 1 of 13 PageID #: 867
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`v.
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`
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Plaintiffs,
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`MODERNA, INC. and MODERNATX, INC.,
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`
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`MODERNA, INC. and MODERNATX, INC.,
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`Defendants.
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`Counterclaim-Plaintiffs,
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`
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`v.
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
`
`
`Counterclaim-Defendants.
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`)
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`) C.A. No. 22-252-MSG
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`[PROPOSED] SCHEDULING ORDER
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`This
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`day of
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`, 2023, the Court having conducted an initial
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`Rule 16(b) scheduling conference pursuant to Local Rule 16.1(b) and received the parties’ Joint
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`Status Report Pursuant to Rule 26(f), and the parties having determined after discussion that the
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`matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard.
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` Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to Federal
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`Rule of Civil Procedure 26(a)(l) within ten (10) days of the date the Court enters this Order. If they
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`have not already done so, the parties are to review the Court’s Default Standard for Discovery,
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 2 of 13 PageID #: 868
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`Including Discovery of Electronically Stored Information (‘‘ESI”), which
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`is posted at
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`http://www.ded.uscourts.gov (see Other Resources, Default Standard for Discovery) and is
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`incorporated herein by reference. The parties shall make their initial disclosures pursuant to
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`Paragraph 3 of the Default Standard within thirty (30) days of the date the Court enters this Order.
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`The parties shall meet and confer about a proposed ESI Order and submit it to the Court within forty-
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`five (45) days from the date the Court enters this Order. Until the parties have agreed on an
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`appropriate ESI Order or the Court has resolved a dispute concerning a proposed ESI Order and such
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`order is entered, the Court’s Default Standard shall control. The lack of agreement between the
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`parties on an ESI Order shall not be used as a basis to refuse to respond to discovery requests while
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`such order is pending.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before XX. Unless otherwise
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`ordered by the Court, any motion to join a party or motion to amend the pleadings shall be made
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`pursuant to the procedures set forth in Paragraphs 8(g) and 9.
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`3. Application to Court for Protective Order. Should counsel find it will be necessary to
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`apply to the Court for a protective order specifying terms and conditions for the disclosure of
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`confidential information, counsel should confer and attempt to reach an agreement on a proposed
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`form of order and submit it to the Court within twenty-one (21) days from the date the Court enters
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`this Order. Should counsel be unable to reach an agreement on a proposed form of order, counsel
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`must follow the provisions of Paragraph 8(g) 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 disclose another
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 3 of 13 PageID #: 869
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`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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`4.
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`Papers Filed Under Seal. In accordance with section G of the Revised Administrative
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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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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies of all
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`briefs and 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. All courtesy copies shall be
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`double-sided.
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`6.
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`Disclosures. Absent agreement among the parties, and approval of the Court1:
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`(a)
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`By February 10, 2023, Defendants shall produce core technical documents
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`related to the accused product(s), sufficient to show how the accused product(s) work(s), including
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`but not limited to non-publicly available operation manuals, product literature, schematics, and
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`specifications. Defendants shall also produce sales figures for the accused product(s).
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`(b)
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`By March 23, 2023, Plaintiffs shall produce an initial claim chart relating
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`each known accused product to the asserted claims each such product allegedly infringes.
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`(c)
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`By XX, Defendants shall produce their initial invalidity contentions for each
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`asserted claim, as well as the known related invalidating references.
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`(d)
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`By XX, [PLAINTIFFS’ PROPOSAL: Plaintiffs shall provide final
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`1 On July 26, 2022, Plaintiffs identified the accused product(s), including accused methods and
`systems, and their damages model, as well as the asserted patent(s) that the accused product(s)
`allegedly infringe(s). On that same day, Plaintiffs also produced the file history for each asserted
`patent.
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 4 of 13 PageID #: 870
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`infringement contentions. The addition or substitution of asserted claims may be made only by order
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`of the Court upon a timely showing of good cause or with Defendants’ consent.] [DEFENDANTS’
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`PROPOSAL: Plaintiffs shall provide final infringement contentions that differ from their initial
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`infringement contentions only for good cause, and with consent of the Defendants or leave of the
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`Court.]
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`(e)
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`By XX, [PLAINTIFFS’ PROPOSAL: Defendants shall provide final
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`invalidity contentions. The addition or substitution of prior art references and/or invalidity defenses
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`may be made only by order of the Court upon a timely showing of good cause or with Plaintiffs’
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`consent.] [DEFENDANTS’ PROPOSAL: Defendants shall provide final invalidity contentions that
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`differ from their initial invalidity contentions only for good cause, and with consent of the Plaintiffs
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`or leave of the Court.]
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`7.
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`Discovery. Unless otherwise ordered by the Court or agreed to by parties, the
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`limitations on discovery set forth in the Federal Rules shall be strictly observed.
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`(a)
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated so
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`that it will be completed on or before XX.
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`(b)
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`Document Production.
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` Document production shall be substantially
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`complete by XX.
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`(c)
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`Requests for Admission. A maximum of 45 requests for admission are
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`permitted for each side. Requests to admit the authenticity of a document shall not count toward this
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`limit.
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`(d)
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`Interrogatories.
`A maximum of 25 interrogatories,
`i.
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`including contention
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`interrogatories, are permitted for each side.
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`ii.
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`The Court encourages the parties to serve and respond to contention
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 5 of 13 PageID #: 871
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`interrogatories early in the case. In the absence of agreement among the parties, contention
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`interrogatories, if filed, shall first be addressed by the party with the burden of proof. The adequacy
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`of all interrogatory answers shall be judged by the level of detail each party provides (i.e., the more
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`detail a party provides, the more detail a party shall receive).
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`(e)
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is limited to
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`a total of 85 hours of taking testimony by deposition upon oral examination, including depositions of
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`third parties. Any deposition lasting less than 4 hours will count as 4 hours against the total time of
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`the side taking the deposition. Each deposition will be limited to seven (7) hours in length of on-the-
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`record time except as specifically extended, by order of the Court, or otherwise agreed to by the
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`parties. For clarity, the hour limitations described in this paragraph do not apply to depositions of
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`expert witnesses.
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`ii.
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`Location of Depositions. The parties shall meet and confer
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`regarding locations of depositions, taking into account convenience for the deponent.
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`(f)
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of proof on
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`the subject matter, the initial Federal Rule of Civil Procedure 26(a)(2) disclosure of expert testimony
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`is due on or before XX. The supplemental disclosure to contradict or rebut evidence on the same
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`matter identified by another party is due on or before XX. Reply expert reports from the party with
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`the initial burden of proof are due on or before XX. No other expert reports will be permitted without
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`either the consent of all parties or leave of the Court. On or before XX, the parties shall advise of the
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`dates and times of their experts’ availability for deposition.
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`ii.
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`Expert Report Supplementation. [PLAINTIFFS’ PROPOSAL:
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`Expert declarations may be filed in connection with motions briefing.] [DEFENDANTS’
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 6 of 13 PageID #: 872
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`PROPOSAL: No expert declarations are to be filed in connection with motions briefing without
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`leave of the Court. The parties may submit expert reports in connection with motions briefing
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`provided they were disclosed in accordance with the schedule in paragraph 7(f)(i).]
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`iii.
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`Expert Discovery Cut-Off. All expert discovery in this case shall be
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`initiated so that it will be completed on or before XX.
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`(g)
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find, after a reasonable effort pursuant to Local Rule 7.1.1, that they are unable to resolve a
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`discovery matter or a dispute relating to a protective order, a party may file correspondence on ECF
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`that shall not exceed three (3) pages outlining the issues in dispute and its position on those issues.
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`Within seven (7) days thereafter, any responsive correspondence shall also be filed on ECF and shall
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`not exceed three (3) pages. Upon review, the Court may schedule a telephone conference. Prior to
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`the above submissions, counsel shall meet and confer to make every effort to come to an amicable
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`resolution.
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`8.
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`Motions to Amend / Motions to Strike.
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`(a)
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`Any motion to amend (including a motion for leave to amend) a pleading or
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`any motion to strike any pleading or other document shall be made pursuant to the discovery dispute
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`procedure set forth in Paragraph 8(g) above.
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`(b)
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`Any such motion shall attach the proposed amended pleading as well as a
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`“redline” comparison to the prior pleading or attach the document to be stricken.
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`9.
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`Advice of Counsel. On or before XX, the parties shall advise each other if they intend
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`to assert an advice of counsel defense and, if so, produce and identify all documents they intend to
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`rely on to support that defense.
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`10.
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`Technology Tutorials. Although technology tutorials are not required by the Court,
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`they are appreciated and, if any party chooses to file such a tutorial, it shall be submitted on or before
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 7 of 13 PageID #: 873
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`the date that the Joint Claim Construction Brief is filed.
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`11.
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`Claim Construction Issue Identification. On XX, the parties shall exchange a list of
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`those claim term(s)/phrase(s) that they believe need construction and their proposed claim
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`construction of those term(s)/phrase(s). On XX, the parties shall exchange counter proposed
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`constructions for any terms identified only by the opposing party in the initial exchange of claim
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`terms. These documents will not be filed with the Court. Subsequent to exchanging that list, the
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`parties will meet and confer to prepare a Joint Claim Construction Chart to be submitted on XX. The
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`parties’ Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of the
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`claim(s) in issue, and should include each party’s proposed construction of the disputed claim
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`language with citation(s) only to the intrinsic evidence in support of their respective proposed
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`constructions. Intrinsic evidence (including copies of the patent(s) at issue) shall NOT be attached
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`to the joint claim construction chart and, instead, the parties shall include a joint appendix with the
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`joint claim construction brief, and the joint appendix shall include a copy of the patent(s) at issue and
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`portions of all relevant intrinsic evidence that would have otherwise been included with the joint
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`claim construction chart, as well as any additional evidence cited in the parties’ briefing.
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`12.
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`Claim Construction Briefing. Plaintiffs shall serve, but not file, their opening brief,
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`not to exceed 20 pages, on XX. Defendants shall serve, but not file, their answering brief, not to
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`exceed 30 pages, on XX. Plaintiffs shall serve, but not file, their reply brief, not to exceed 20 pages,
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`on XX. Defendants shall serve, but not file, their sur-reply brief, not to exceed 10 pages, on XX. No
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`later than XX, the parties shall file a Joint Claim Construction Brief. The parties shall copy and paste
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`their unfiled briefs into one brief, with their positions on each claim term in sequential order, in
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`substantially the form below. If the joint brief as submitted is more than 80 pages, the parties must
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`certify that the page limits (or equivalent word counts) in the Scheduling Order have been complied
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`with and provide a brief explanation (e.g., formatting issues, listing of agreed-upon terms) as to why
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 8 of 13 PageID #: 874
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`the brief is longer than 80 pages.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`II.
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`Agreed-Upon Constructions
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`Disputed Constructions
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`[TERM 1]
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`1.
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`2.
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`3.
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`4.
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`Plaintiffs’ Opening Position
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`Defendants’ Answering Position
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`Plaintiffs’ Reply Position
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`Defendants’ Sur-Reply Position
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`[TERM 2]
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`1.
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`2.
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`3.
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`4.
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`Plaintiffs’ Opening Position
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`Defendants’ Answering Position
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`Plaintiffs’ Reply Position
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`Defendants’ Sur-Reply Position
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`The parties need not include any general summaries of the law relating to claim construction. If
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`there are any materials that would be submitted in an index, the parties shall submit them in a Joint
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`Appendix.
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`13.
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`Hearing on Claim Construction. Beginning at 9:00 a.m. on XX, the Court will hear
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`argument on claim construction. The parties need not include any general summaries of the law
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`relating to claim construction in their presentations to the Court. The parties shall notify the Court,
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`by joint letter submission, no later than the date on which their joint claim construction brief is filed:
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`(i) whether they request leave to present testimony at the hearing; and (ii) the amount of time they
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`are requesting be allocated to them for the hearing.
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`Provided that the parties comply with all portions of this Scheduling Order, and any other
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`orders of the Court, the parties should anticipate that the Court will issue its claim construction
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 9 of 13 PageID #: 875
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`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 conclusion
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`of the claim construction hearing.
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`14.
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`Summary Judgment and Daubert Motions.
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`Any case dispositive motion, an opening brief, and affidavits, if any, in support of the motion
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`shall be served and filed on or before XX. Any opposition briefing shall be served and filed on or before
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`XX. Any reply briefing shall be served and filed on or before XX.
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`a.
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`No early motions without leave. No case dispositive motion under Rule 56 may be filed
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`more than ten (10) calendar days before the above date without leave of the Court.
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`b.
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`Page limits. Each SIDE is permitted to file a single, comprehensive case-dispositive
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`motion setting forth all bases for relief. Any brief or memorandum filed in support of the motion shall
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`be limited to thirty (30) pages. Any brief or memorandum filed in opposition or in response to the
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`motion shall be limited to thirty (30) pages. Any reply brief shall be limited to ten (10) pages.
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`c.
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`Daubert motions. Each SIDE is permitted to file a single, comprehensive Daubert
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`motion. Any Daubert motion and any opening brief in support of the motion shall be served and filed
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`on or before XX. Any opposition briefing shall be served and filed on or before XX. Opening and
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`opposition briefs shall be limited to twenty-five (25) pages. Reply or surreply briefs may only be filed
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`with leave of Court. In the event that a party files, in addition to a case dispositive motion, a Daubert
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`motion to exclude or preclude all or any portion of an expert's testimony, the total amount of pages
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`permitted for all case dispositive and Daubert motions shall be limited to 50 pages for all opening briefs
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`and 50 pages for all answering briefs for each SIDE. The combined page limits set forth in the previous
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`sentence do not supersede the limits set forth above with respect to the individual briefs (i.e., 30 pages
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`for summary judgment opening and responsive briefs and 25 pages for Daubert opening and responsive
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`briefs), which shall still apply.
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 10 of 13 PageID #: 876
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`15.
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`Applications by Motion. Except as otherwise specified herein, any application to the
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`Court shall be by written motion. Any non-dispositive motion should contain the statement required
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`by Local Rule 7.1.1.
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`16. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall be
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`limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine request
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`and any response shall contain the authorities relied upon; each in limine request may be supported
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`by a maximum of three (3) pages of argument, may be opposed by a maximum of three (3) pages of
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`argument, and the side making the in limine request may add a maximum of one (l) additional page
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`in reply in support of its request. If more than one party is supporting or opposing an in limine
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`request, such support or opposition shall be combined in a single three (3) page submission (and, if
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`the moving party, a single one (1) page reply), unless otherwise ordered by the Court. No separate
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`briefing shall be submitted on in limine requests, unless otherwise permitted by the Court.
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`17.
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`Pretrial Conference. On XX, the Court will hold a pretrial conference in Court with
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`counsel beginning at 9:00 a.m. Unless otherwise ordered by the Court, the parties should assume
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`that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of Civil
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`Procedure 26(a)(3). The parties shall file with the Court the joint proposed final pretrial order in
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`compliance with Local Rule 16.3(c) and the Court’s Preferences and Procedures for Civil Cases not
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`later than seven (7) days before the pretrial conference. Unless otherwise ordered by the Court, the
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`parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for the preparation of
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`the joint proposed final pretrial order. The parties shall provide the Court two (2) double-sided
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`courtesy copies of the joint proposed final pretrial order and all attachments. The proposed final
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`pretrial order shall contain a table of contents and the paragraphs shall be numbered.
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`18.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 11 of 13 PageID #: 877
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`to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1 the parties should file (i) proposed voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms seven (7)
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`days before the final pretrial conference. This submission shall be accompanied by a courtesy copy
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`containing electronic files of these documents, in Microsoft Word format, which may be submitted
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`by e-mail to Chambers_of_Judge_Mitchell_S_Goldberg@paed.uscourts.gov.
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`19.
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`Trial. This matter is scheduled for a [PLAINTIFFS’ POSITION: 10]
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`[DEFENDANTS’ POSITION: 6] day jury trial beginning at 9:30 a.m. on XX, with the subsequent
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`trial days beginning at 9:00 a.m. Until the case is submitted to the jury for deliberations, the jury will
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`be excused each day at 4:30 p.m. The trial will be timed, as counsel will be allocated a total number
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`of hours in which to present their respective cases.
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`20.
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days after a jury
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`returns a verdict in any portion of a jury trial, the parties shall jointly submit a form of order to enter
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`judgment on the verdict. At the same time, the parties shall submit a joint status report, indicating
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`among other things how the case should proceed and listing any post-trial motions each party intends
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`to file.
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`21.
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`Post-Trial Motions. The parties will address the post-trial briefing schedule and page
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`limits in the proposed final pretrial order.
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`The Honorable Mitchell S. Goldberg
`United States District Judge
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 12 of 13 PageID #: 878
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`Exhibit A: Chart of Proposed Deadlines
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`Event
`Exchange of Rule 26(a)(1) Initial
`Disclosures
`Filing of Joint Proposed Protective
`Order
`Exchange of Default Standard
`Paragraph 3 Disclosures
`Filing of Joint Proposed ESI Order
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`Plaintiffs’ Proposal
`10 days from entry of
`Scheduling Order
`21 days from entry of
`Scheduling Order
`30 days from entry of
`Scheduling Order
`45 days from entry of
`Scheduling Order
`February 10, 2023
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`Moderna to Produce Core Technical
`Documents
`Arbutus/Genevant to Serve Initial
`Infringement Contentions
`Moderna to Serve Initial Invalidity
`Contentions
`Exchange List of Claim
`Term(s)/Phrase(s)
`Exchange Counter Proposed
`Constructions for Any Terms Identified
`Only by the Opposing Party
`Joint Claim Construction Chart
`Arbutus/Genevant’s Opening Claim
`Construction Brief
`Moderna’s Answering Claim
`Construction Brief
`Arbutus/Genevant’s Reply Claim
`Construction Brief
`Moderna’s Sur-Reply Claim
`Construction Brief
`Joinder of Other
`Parties/Amendment/Supplementation
`Filing of Joint Claim Construction Brief September 8, 2023
`Substantial Completion of Document
`July 19, 2023
`Production
`Deadline to Assert Advice of Counsel
`Defense
`Claim Construction Hearing
`Fact Discovery Cut-Off
`Arbutus/Genevant to Serve Final
`Infringement Contentions
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`March 23, 2023
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`May 3, 2023
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`May 12, 2023
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`May 19, 2023
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`May 31, 2023
`June 28, 2023
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`July 26, 2023
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`August 16, 2023
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`September 6, 2023
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`September 6, 2023
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`September 6, 2023
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`October 4, 2023
`October 18, 2023
`November 15, 2023
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`12
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`Defendants’ Proposal
`10 days from entry of
`Scheduling Order
`21 days from entry of
`Scheduling Order
`30 days from entry of
`Scheduling Order
`45 days from entry of
`Scheduling Order
`February 10, 2023
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`March 23, 2023
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`May 19, 2023
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`June 9, 2023
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`June 16, 2023
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`June 29, 2023
`August 10, 2023
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`September 14, 2023
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`October 19, 2023
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`November 17, 2023
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`November 28, 2023
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`November 21, 2023
`November 10, 2023
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`November 12, 2023
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`December __, 2023
`March 1, 2024
`March 15, 2024
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`Case 1:22-cv-00252-MSG Document 46-1 Filed 02/13/23 Page 13 of 13 PageID #: 879
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`Defendants’ Proposal
`April 5, 2024
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`April 19, 2024
`June 7, 2024
`July 18, 2024
`July 19, 2024
`August 23, 2024
`September 13, 2024
`
`October 11, 2024
`
`November 1, 2024
`
`January 20, 2025
`
`Early February 2025
`Late February 2025
`7 days after jury verdict
`7 days after jury verdict
`
`Plaintiffs’ Proposal
`November 15, 2023
`
`June 12, 2024
`
`July 3, 2024
`
`Event
`Moderna to Serve Final Invalidity
`Contentions
`November 29, 2023
`Opening Expert Reports
`February 6, 2024
`Rebuttal Expert Reports
`March 20, 2024
`Reply Expert Reports
`Availability of Experts for Deposition March 21, 2024
`Deadline for Expert Discovery
`April 24, 2024
`Summary Judgment Motions/Daubert
`May 15, 2024
`
`Motions
`Opposition to Summary Judgment
`Motions/Daubert Motions
`Replies to Summary Judgment
`Motions/Daubert Motions
`
`Order, Jury Instructions, Voir Dire, and
`Special Verdict Forms
`August 12, 2024
`Final Pre-Trial Conference
`August 19, 2024
`Jury Trial
`7 days after jury verdict
`Filing of Joint Form of Order
`Filing of Joint Post-Trial Status Report 7 days after jury verdict
`
`Parties File Joint Proposed Final Pretrial August 2, 2024
`
`
`
`
`
`
`
`13
`
`