Case 1:22-cv-00311-WCB Document 37 Filed 12/01/22 Page 1 of 8 PageID #: 2003
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
`MOTIF FOODWORKS, INC.,
`Defendant.
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`C.A. No. 22-311 (WCB)
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`SCHEDULING ORDER
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`The court having conducted an initial Rule 16(b) scheduling conference pursuant to Local
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`Rule 16.1(b), and the parties having determined after discussion that the matter cannot be resolved
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`at this juncture by settlement, voluntary mediation or binding arbitration:
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`IT IS ORDERED that:
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`1. Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties, the parties
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`shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) on
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`December 14, 2022.
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`2. Disclosure of Asserted Patents and Accused Product(s). Unless otherwise agreed to by
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`the parties, not later than January 2, 2023, plaintiff shall specifically identify the accused
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`product(s) and the asserted patent(s) that defendant allegedly infringes, and produce the file history
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`for each asserted patent, all documents evidencing ownership of the asserted patent rights by
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`plaintiff, and all agreements, including licenses, transferring an interest in any asserted patent.
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`3. Disclosure of Core Technical Documents. Unless otherwise agreed to by the parties,
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`not later than March 3, 2023, defendant shall produce to plaintiff the core technical documents
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`related to the accused product(s), including but not limited to operation manuals, product literature,
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`schematics, and specifications.
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`Case 1:22-cv-00311-WCB Document 37 Filed 12/01/22 Page 2 of 8 PageID #: 2004
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`4. Infringement Contentions. Unless otherwise agreed to by the parties, not later than
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`April 7, 2023, the plaintiff shall serve Initial Infringement Contentions on the defendant. Not later
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`than September 1, 2023, the plaintiff shall serve Final Infringement Contentions on the defendant.
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`The Infringement Contentions shall contain the following information:
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`a. Each claim of each asserted patent that is allegedly infringed by the defendant;
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`b. A chart identifying specifically where and how each limitation of each asserted
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`claim is found within the accused product;
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`c. For each limitation of each asserted claim, whether the limitation is alleged to
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`be present literally or under the doctrine of equivalents in the accused product;
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`d. For any patent that claims priority to an earlier application, the priority date to
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`which each asserted claim is alleged to be entitled.
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`5. Invalidity Contentions. Unless otherwise agreed to by the parties, not later than May
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`5, 2023, the defendant shall serve its Initial Invalidity Contentions on the plaintiff. Not later than
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`October 6, 2023, the defendant shall serve its Final Invalidity Contentions on the plaintiff. The
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`Invalidity Contentions shall contain the following information:
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`a. The identity of each item of prior art that the defendant alleges anticipates each
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`asserted claim or renders the claim obvious. Each prior art patent shall be identified by its number,
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`country of origin, and date of issue. Each prior art publication shall be identified by its title, date
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`of publication, and, where feasible, author and publisher. Any alleged sale or public use shall be
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`identified by specifying the item offered for sale or publicly used or known, the date the offer or
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`use took place or the information became known, and the identity of the person or entity that made
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`the use or that made and received the offer, or the person or entity that made the information known
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`or to whom it was made known.
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`b. Whether each item of prior art anticipates each asserted claim or renders it
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`obvious. If obviousness is alleged, an explanation of why the prior art renders the asserted claim
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`obvious, including an identification of any combinations of prior art showing obviousness;
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`c. A chart identifying specifically where and how in each alleged item of prior art
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`each limitation of each asserted claim is found, including for each limitation that such party
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`contends is governed by 35 U.S.C. § 112(f), the identity of the structure(s), act(s), or material(s)
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`in each item of prior art that performs the claimed function; and
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`d. Any grounds of invalidity based on 35 U.S.C. § 101, indefiniteness under 35
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`U.S.C. § 112(b), or lack of enablement or insufficient written description under 35 U.S.C. § 112(a)
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`of any of the asserted claims.
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`6. Amendment of Contentions. Amendment of the Final Infringement Contentions or the
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`Final Invalidity Contentions may be made only by order of the court upon a timely showing of
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`good cause.
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`7. Joinder of Other Parties and Amendment of Pleadings. All motions to join parties and
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`to amend or supplement the pleadings shall be filed on or before June 30, 2023.
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`8. Discovery.
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`a. Discovery Cut Off. All fact discovery in this case shall be initiated so that it will
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`be completed on or before December 1, 2023, or 60 days after the Markman order is entered,
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`whichever is later.
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`b. Document Production. Document production shall be complete by July 7, 2023.
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`c. Requests for Admission. A maximum of 100 requests for admission are
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`permitted for each party. Requests for admission directed to the authenticity of documents do not
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`count against the foregoing limit on the number of requests for admission.
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`d. Interrogatories. A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each party.
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`e. Depositions. Each party will be limited to 105 hours per side for depositions,
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`including third-party and inventor depositions and excluding expert depositions. Unless otherwise
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`stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. Any party or
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`representative (officer, director, or managing agent) of a party filing a civil action in this district
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`court must ordinarily be required, upon request, to submit to a deposition at a place designated
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`within this district. Exceptions to this general rule may be made by order of the court or by
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`agreement of the parties. A defendant who becomes a counter-claimant, cross-claimant, or third-
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`party plaintiff shall be considered as having filed an action in this district court for purposes of this
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`provision.
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`f. Disclosure of Expert Testimony.
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`i. Expert Reports. For the party that has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`February 21, 2024, or 90 days after the fact discovery deadline, whichever is later. The opposing
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`party’s responsive disclosure of expert testimony is due on or before April 3, 2024, or 42 days
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`after opening expert reports are served, whichever is later. No other expert reports will be
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`permitted without either the consent of all parties or leave of the Court. Along with the
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`submissions of the expert reports, the parties shall advise of the dates and times of their experts’
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`availability for deposition. Any expert depositions shall be taken no later than May 1, 2024, or 28
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`days after responsive expert reports are served, whichever is later.
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`ii. Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
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`Pharmaceutical, Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it
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`shall be made by motion no later than the deadline for dispositive motions set forth herein, unless
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`otherwise ordered by the Court.
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`g. Discovery Matters and Disputes Relating to Protective Orders. Should counsel
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`find they are unable to resolve a discovery matter or a dispute relating to a protective order, the
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`parties involved in the discovery matter or protective order dispute shall contact the Court’s law
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`clerk to schedule a hearing. The Court’s law clerk, Mr. Dane Sowers, can be reached at
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`sowersd@cafc.uscourts.gov. The Court will then direct the filing of letter briefs, to be followed
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`by a telephonic hearing if the court considers the hearing necessary. Discovery-related disputes
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`should not be addressed by motion.
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`9. Application to the Court for a Protective Order. Should counsel find it 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 ten days from the date of this order. Should counsel
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`be unable to reach agreement on a proposed form of order, counsel must follow the provisions of
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`Paragraph 3(g) above.
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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
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`information in this case, the court does not intend to preclude another court from
`finding that information may be relevant and subject to disclosure in another case.
`Any person or party subject to this order who becomes subject to a motion to
`disclose another party’s information designated as confidential pursuant to this
`order shall promptly notify that party of the motion so that the party may have an
`opportunity to appear and be heard on whether that information should be disclosed.
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`10. Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to the
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`Clerk an original and one copy of the papers. A redacted version of any sealed document shall be
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`filed electronically within seven days of the filing of the sealed document. Papers should not be
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`filed under seal unless there is a specific and substantial reason that particular materials in those
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`papers are confidential and need to be protected from disclosure.
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`11. Courtesy Copies. Courtesy copies of motions or other documents filed ordinarily need
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`not be provided to the court. However, the parties shall provide the court with a courtesy copy of
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`all briefs relating to any dispositive motion or Daubert motion, along with a courtesy copy of any
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`other document filed in support of any such brief (i.e., appendices, exhibits, declarations,
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`affidavits, etc.) by mailing them to Judge Bryson’s chambers, 717 Madison Place, N.W., Suite
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`910, Washington, D.C. 20439. This provision also applies to papers filed under seal.
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`12. Deadlines. All documents required to be filed on a specified date (or within a specified
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`number of days after a particular event) must be filed no later than 5 p.m. on the date specified.
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`Any requests to extend a deadline must be filed at least three business days in advance of the
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`deadline.
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`13. Claim Construction. The parties will meet and confer to determine what, if any, issues
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`of claim construction the court needs to address. On or before May 31, 2023, the parties will
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`advise the court as to what claim construction issues the parties have identified, which are ones on
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`which the parties agree on a construction, which claim construction issues are disputed, and what
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`the parties proposed claim constructions are for each of the identified claim construction issues,
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`disputed or undisputed.
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`a. Claim Construction Briefing. On or before June 14, 2023, the plaintiff will file
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`a brief of no more than 5000 words setting out its position on claim construction. On June 28,
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`2023, the defendant will file a single answering brief of no more than 7500 words setting out its
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`position on claim construction. On July 7, 2023, the plaintiff may file a reply brief of no more
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`than 5000 words on claim construction. On July 14, 2023, the defendant may file a sur-reply
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`brief of no more than 2500 words on claim construction.
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`b. Meet and Confer on Claim Construction. On or before July 21, 2023, the parties
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`will meet and confer in an effort to narrow their disputes as to claim construction issues. Within
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`three business days of the meet and confer, the parties will submit to the court a joint status report
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`indicating what, if any, issues have been resolved or narrowed regarding claim construction.
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`c. Hearing on Claim Construction. If, after considering the parties’ briefs and the
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`status report, the court determines that a hearing on claim construction would be useful, the court
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`will set such a hearing. At least 10 days in advance of the hearing, each party will advise the court
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`and the opposing party if live testimony will be presented at the hearing. The court strongly
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`discourages the use of PowerPoints and other demonstratives. If the parties wish to refer to
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`exhibits or illustrations, those should be included in the materials submitted to the court with the
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`claim construction briefs.
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`14. Case Dispositive Motions. All case dispositive motions, an opening brief, and
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`affidavits, if any, in support of the motion shall be served and filed on or before June 12, 2024.
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`Unless otherwise ordered, each side will address all of their case dispositive and Daubert motions
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`in an opening brief of no more than 7500 words. Each side may file a single responsive brief of
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`no more than 7500 words. Responsive briefs shall be filed by July 17, 2024. The movant may
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`then file a single reply brief of no more than 2500 words. Reply briefs shall be filed by July 31,
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`2024.
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`15. 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
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`required by Local Rule 7.1.1. Any brief in support of a motion, as well as the associated response
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`and reply briefs, should be double-spaced with 12-point Times New Roman font. All footnotes in
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`such briefs should be double-spaced.
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`16. Pretrial Conference. On a date to be determined, the court will hold a final pretrial
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`conference with counsel. The parties shall file a joint proposed pretrial order in compliance with
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`Local Rule 16.3(c) no later than 5 p.m. on the third business day before the date of the final pretrial
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`conference.
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`17. 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 joint proposed pretrial order. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three pages of argument and may be opposed by a maximum of three
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`pages of argument. The party making the in limine request may file a reply of one page in support
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`of its request.
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`18. Trial. This case is scheduled for a 5 day jury trial beginning at 9:00 a.m. on January
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`13, 2025, with each subsequent trial day beginning at 9:00 a.m. The trial will be timed, with each
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`party being given no more than 11 hours to present its case (including openings and closings).
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`IT IS SO ORDERED.
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`SIGNED this 1st day of December, 2022.
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`_______________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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