Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7893 Filed 11/04/22 Page 1 of 26
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`Exhibit B
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`

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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7894 Filed 11/04/22 Page 2 of 26
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`dUNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
`
`
`
`
`
`
`
`
`
` Case No.
` Hon. Terrence G. Berg
`
`
`
`
`
`In Re: Neo Wireless, LLC,
`Patent Litigation
`
`
`
`
`
`
`JOINT RULE 26 REPORT AND PROPOSED SCHEDULING ORDER
`
`Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, the parties to this case, by
`
`and through their respective counsel, jointly submit this Rule 26(f) Report and Proposed
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`Scheduling Order:
`
`
`Initial Disclosures
`
`Fact Discovery Commences
`
`Infringement Contentions
`Invalidity and Non-Infringement
`Contentions
`
`[Defendant’s Proposal: Validity
`Contentions]
`Deadline to Amend Pleadings
`Deadline to Add Parties
`Contact Technical Advisor to
`Schedule Settlement Conference
`(Court)
`Initial Identification of Disputed
`Claim Terms
`Exchange Proposed
`Interpretations of Disputed
`Claim Terms
`
`Defendants’ Proposal
`September 14, 2022
`
`August 10, 2022One month
`after Markman order
`Sept. 28, 2022
`
`Neo’s Proposal
`Wednesday, September 14,
`2022
`Wednesday, August 10,
`2022
`Wednesday, September 28,
`2022
`Thursday, October 27, 2022; Nov. 16, 2022 [Invalidity
`Contentions]; Dec. 22, 2022
`[Non-Infringement
`Contentions]
`Dec. 22, 2022
`
`
`
`Friday, December 16, 2022 Dec. 16, 2022
`Friday, December 16, 2022
`September 30, 2022
`TBD
`TBD
`
`Thursday, December 1,
`2022
`Wednesday, December 28,
`2022
`
`Nov. 28December 1, 2022
`
`Dec. 2815, 2022
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`
`
`1
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7895 Filed 11/04/22 Page 3 of 26
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`
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`Final Identification of Disputed
`Claim Terms
`Informal Technology Tutorial
`(Court)
`
`Plaintiff’s Opening Claim
`Construction Briefs
`Defendant’s Responsive Claim
`Construction Brief
`Plaintiff’s Reply Claim
`Construction Brief
`Claim Construction Hearing
`(Court) (2-3 months from
`deadline of Plaintiff’s Reply
`Claim Construction Brief)
`Beginning of fact discovery
`
`[Plaintiff’s Proposal: Deadline
`for Parties to Amend
`Contentions]
`[Defendant’s Proposal: Deadline
`to amend burden contentions
`after Markman]
`[Defendant’s Proposal: Deadline
`to amend non-burden
`contentions after Markman]
`Fact Discovery Closes
`
`Expert Reports on Infringement
`(Plaintiff), Invalidity
`(Defendant), and Damages
`(Plaintiff)
`Rebuttal Expert Reports
`
`Expert Discovery Deadline
`
`Dispositive Motion Deadline
`
`Oppositions to dispositive
`motions
`Replies to dispositive motions
`
`Defendants’ Proposal
`Neo’s Proposal
`Wednesday, January 4, 2022 Jan. 418, 2023
`
`TBD (January 18, 2023
`According to Model
`Timeline)
`Thursday, February16, 2023 Feb. 2016, 2023
`
`Jan. 18Feb 1, 2023
`
`Thursday, March 16, 2023 Mar. 2016, 2023
`
`Thursday, March 30, 2023
`
`Apr. 3Mar. 30, 2023
`
`TBD
`
`TBD
`
`Wednesday, August 10,
`2022
`1 Month after Markman
`Order
`
`1 mon. after Markman
`Order
`1 Month after Markman
`Order
`
`
`
`
`
`2 Months from Claim
`Construction Opinion
`3 Months from Claim
`Construction Opinion
`
`1 mon. after Markman
`Order
`
`2 mon. after Markman
`Order
`
`63 mon. after Markman
`Order
`74 mon. after Markman
`Order
`
`4 Months from Claim
`Construction Opinion
`2 Weeks from Rebuttal
`Expert Report Deadline
`2 Weeks from Expert
`Discovery Deadline
`21 days from filing
`
`96 mon. after Markman
`Order
`118 mon. after Markman
`Order
`129 mon. after Markman
`Order
`21 days from filing
`
`14 days from oppositions
`
`14 days from oppositions
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`
`
`I.
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`
`
`RULE 26(f) CONFERENCE.
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`2
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7896 Filed 11/04/22 Page 4 of 26
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`Pursuant to Rule 26(f), the parties held a meeting on August 10, 2022, which was attended
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`by the following attorneys:
`
`Christopher Stewart
`Daniel Pearson
`Bailey Blaies
`Bjorn Blomquist
`Caldwell Cassady Curry P.C.
`2121 N. Pearl St., Suite 1200 Dallas, Texas
`75201 Telephone: (214) 888-4848
`
`Attorneys for Plaintiff
`
`II.
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`DISCOVERY PLAN
`
`Attorney
`FIRM
`ADDRESS
`ADDRESS
`TELEPHONE NUMBER
`
`Attorney for Defendant
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`The discovery in this case is limited to the disclosures described in the following
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`paragraphs:. Where a limit is defined by Defendant that limit shall apply to a group of legally
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`affiliated Defendants.
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`a.
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`Interrogatories. Plaintiff may serve up to [Plaintiff’s Proposal: 35
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`interrogatories on each Defendant/Defendant’s Proposal: 15
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`joint
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`interrogatories on the Defendants and may serve up to 10 individualized
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`interrogatories on each Defendant]. Defendants may serve 15 joint
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`interrogatories on Plaintiff, and each party Defendant may serve [Plaintiff’s
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`Proposal: 8/Defendant’s Proposal: 10] individualized interrogatories on
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`Plaintiff. “Party” means a party and its affiliated companies. “Side” means
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`a party or group of parties with a common interest.
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`b.
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`Requests for Admission. Plaintiff may serve up to [Plaintiff’s Proposal: 50
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`requests for admission on each party Defendant/Defendant’s Proposal:20
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`joint requests for admission and 20 individualized requests for admission
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`on each party Defendant]. Defendants shall serve [Plaintiff’s Proposal: 15/
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`
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`3
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`

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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7897 Filed 11/04/22 Page 5 of 26
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`Defendant’s Proposal: 20] joint requests for admission on Plaintiff, and
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`each party Defendant may serve [Plaintiff’s Proposal: 10/Defendant’s
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`Proposal: 20] individualized requests for admission on Plaintiff. This limit
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`does not apply to requests for admission that seek an admission as to the
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`authenticity of a document or thing. Such requests for admission as to
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`authenticity will be unlimited, clearly denoted as such, and served
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`separately from other requests for admission.
`
`c.
`
`Depositions.
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`4
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7898 Filed 11/04/22 Page 6 of 26
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`
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`i.
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`Party Witnesses: Plaintiff may take up to [Plaintiff’s Proposal:
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`100/Defendant’s Proposal: 35] hours of 30(b)(1) or 30(b)(6)
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`depositions
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`from each party Defendant. Defendants may
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`collectively take [Plaintiff’s Proposal: 100/Defendant’s Proposal:
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`125] hours of 30(b)(1) or 30(b)(6) depositions from Plaintiff.
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`Defendants must take all reasonable efforts to avoid duplicative
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`questioning against Plaintiff’s witnesses. TheNotwithstanding the
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`foregoing, the deposition of any single fact witness will be limited
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`to 7 hours unless that witness is cross-noticed in multiple cases, then
`
`the deposition will be limited to 7 hours plus [Plaintiff’s Proposal:
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`an additional 1 hour per case in which the witness is cross-noticed
`
`up to a maximum of 10 hours/Defendant’s Proposal: an additional
`
`42 hours per additional case for which the witness was cross-noticed
`
`up to a maximum of 14 hours]. If either side believes that additional
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`time with a particular witness is necessary, the parties shall meet and
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`confer in good faith in order to reach an agreement.
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`ii.
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`Third Party Witnesses: The deposition of any single third-party
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`witness will be limited to 7 hours absent leave of Court or written
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`agreement of the parties and the witness or designating entity.
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`iii.
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`Expert Witnesses: No more than 7 hours of expert witness
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`deposition testimony may be taken by each side for each disclosed
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`expert witness who provides a report, except that if such a witness
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`submits testimony in multiple reports (e.g., infringement and
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`5
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7899 Filed 11/04/22 Page 7 of 26
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`validity or multiple infringement reports), submits an infringement
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`or non-infringement report for more than one defendant party (e.g.,
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`alleging infringement or non-infringement by multiple defendant
`
`groups), or submits a report that responds to multiple reports, the
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`limit will be 7 hours plus [Plaintiff’s Proposal: 4 hours for each
`
`additional report and 1 hour per additional infringement defendant
`
`up to a maximum of 14 hours/Defendant’s Proposal: 4 hours for
`
`each report or party, up to a maximum of 35 hours]. No additional
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`time for an expert witness deposition will be warranted absent a
`
`showing of good cause. The parties will be expected to work
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`cooperatively before raising any requests for additional time with
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`the Court.21 hours.]
`
`iv.
`
`Interpreters and Translators:
`
`[Plaintiff’s Proposal: Any
`
`deposition requiring the use of an interpreter or translator may be up
`
`to 10.5 hours (subject to the parties’ agreements in Sections 2(c) i-
`
`iii) such that a 7 hour deposition under Federal Rule of Civil
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`Procedure 30(d)(1) would instead be limited to 10.5 hours.]. A
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`deposition using a translator counts for 2/3 time in relation to limits,
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`such that a 10.5 hour deposition would be counted as 7 hours of
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`time. The deposition can be split over two days at the election of the
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`producing party or producing non-party.
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`III.
`
`SUBJECTS AND NATURE OF DISCOVERY
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`6
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7900 Filed 11/04/22 Page 8 of 26
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`A.
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`DISCOVERY BY PLAINTIFF
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`Plaintiff anticipates seeking discovery on at least the following topics: (1) the structure,
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`function, and operation of the accused products; (2) the development of the allegedly infringing
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`features; (3) the importance of those features to the operation and performance of the accused
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`products; (4) issues relating to damages, including the importance of the patented features to
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`Defendants’ customers and Defendant’s sales and profits realized for the accused products and any
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`ancillary sales made as a result of the accused products; (5) the factual basis for Defendants’
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`defenses; (6) claim construction of the patents-in-suit; (7) Defendants’ knowledge of the patents-
`
`in-suit and efforts to avoid infringement; and (8) factual basis of Defendants’ beliefs that the
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`patents-in-suit are invalid or not infringed. Plaintiff further anticipates taking discovery from third
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`parties, including third-party carriers and third-party manufacturers of components incorporated
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`into the accused products.
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`B.
`
`DISCOVERY BY DEFENDANT
`
`Defendants anticipate seeking discovery on at least the following topics: (1) the factual
`
`basis for Plaintiff’s allegations, including infringement, willful infringement, validity, and
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`damages; (2) the patents-in-suit and the prosecution history of the patents-in-suit and related
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`patents, including records created during inter partes review proceedings involving the patents-in-
`
`suit and any related patents; (3) the conception, reduction to practice, research, development, and
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`use of the alleged inventions claimed in the patents-in-suit; (4) the prior art to the asserted patents;
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`(5) the ownership of the patents-in-suit; (6) the implementation (if any) of the patents-in-suit in
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`the LTE standard or 5G standard; (7) compliance with and/or agreements pertaining to
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`commitment(s) to license the asserted patents on fair, reasonable, and non-discriminatory terms;
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`(8) communications and agreements between Neo (and any predecessors) and third parties
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`7
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7901 Filed 11/04/22 Page 9 of 26
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`regarding the patents-in-suit, including settlement agreements; (9) pleadings, documents,
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`discovery, and transcripts from other proceedings involving the asserted patents or related patents,
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`and (10) any valuation of the patents-in-suit.
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`C.
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`ELECTRONICALLY STORED INFORMATION
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`The parties agree to take reasonable steps to preserve potentially relevant ESI. A party’s
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`meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be
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`considered in cost-shifting determinations.
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`Absent agreement of the parties or further order of this Court, the following parameters
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`shall apply to ESI production:
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`a.
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`General Document Image Format. Each electronic document shall be
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`produced in single-page Tagged Image File Format (“TIFF”) format., where
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`possible. For example, it is understood that TIFF formatting may in some
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`instances only be possible for black and white images and not color images.
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`TIFF files shall be single page and shall be named with a unique production
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`number followed by the appropriate file extension., where possible. Load
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`files shall be provided to indicate the location and unitization of the TIFF
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`files. If a document is more than one page, the unitization of the document
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`and any attachments and/or affixed notes shall be maintained as they existed
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`in the original document.
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`b.
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`Text-Searchable Documents. The parties will provide document-level
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`searchable text for all produced documents. Electronically extracted text
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`shall be provided if available for all documents collected from electronic
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`sources. Text generated via Optical Character Recognition (“OCR”) shall
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`8
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7902 Filed 11/04/22 Page 10 of 26
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`be provided for documents to the extent originally maintained in hard copy,
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`redacted documents, and electronic documents that do not contain
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`electronically extractable text (e.g. non-searchable PDF documents and
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`image files).
`
`c.
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`Footer. Each document image shall contain a footer with a sequentially
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`ascending production number.
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`d.
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`Native Files. A party that receives a document produced in a format
`
`specified above may make a reasonable request to receive the document in
`
`its native format, and upon receipt of such a request, the producing party
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`shall produce the document in its native format. The parties agree
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`that .xls, .csv and other spreadsheet.csv files will not be converted to another
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`format and instead will be produced natively without a specific request for
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`native production, absent good cause to produce in another format.
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`e.
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`No Backup Restoration Required. Absent a showing of good cause, no
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`party need restore any form of media upon which backup data is maintained
`
`in a party’s normal or allowed processes, including but not limited to backup
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`tapes, disks, SAN, and other forms of media, to comply with its discovery
`
`obligations in the present case.
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`f.
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`Load Files. Metadata load files will contain the applicable fields listed in
`
`Exhibit A, if available based on reasonable collection efforts.
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`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged or
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`work product protected ESI is not a waiver in the pending case or in any other federal or state
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`proceeding. The receiving party shall not use ESI that the producing party asserts is attorney-client
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`9
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7903 Filed 11/04/22 Page 11 of 26
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`privileged or work product protected to challenge the privilege or protection. The mere production
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`of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose.
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`The foregoing provisions do not otherwise modify the treatment of inadvertently produced
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`material under the agreed Protective Order.
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`
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`A party is only required to produce a single copy of a responsive document and a party
`
`may de-duplicate identical responsive ESI (based on MD5 or SHA-1 hash values at the
`
`documentfamily level) across custodians. To the extent that de-duplication through MD5 or SHA-
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`1 hash values is not possible, or to the extent that population of the above fields is not possible or
`
`practicable, the parties shall meet and confer to discuss any other proposed method of de-
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`duplication.
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`
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`[Defendant’s Proposal: Normal ESI discovery shall not include discovery of e-mail
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`records. To the extent a party believes e-mail discovery is necessary, the parties shall meet and
`
`confer on a framework for such e-mail discovery. No e-mail discovery shall be permitted absent
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`a showing of good cause and order of the court.]
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`
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`[Plaintiff’s Proposal: E-mail production requests shall be phased to occur timely after the
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`parties have exchanged initial disclosures, a specific listing of likely e-mail custodians, a specific
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`identification of the fifteen most significant listed e-mail custodians in view of the pleaded claims
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`and defenses, infringement contentions and accompanying documents, invalidity contentions and
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`accompanying documents, and preliminary information relevant to damages. The exchange of this
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`information shall occur at the time required under the Federal Rules of Civil Procedure, Local
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`Rules, or by order of the court. Each requesting party may also propound up to five written
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`discovery requests and take one deposition per producing party to identify the proper custodians,
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`10
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7904 Filed 11/04/22 Page 12 of 26
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`proper search terms, and proper time frame for e-mail production requests. The court may allow
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`additional discovery upon a showing of good cause.
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`E-mail production requests shall identify the custodian, search terms, and time frame. The
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`parties shall cooperate to identify the proper custodians, proper search terms, and proper time
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`frame. Each requesting party shall limit its e-mail production requests to a total of eight custodians
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`per party for all such requests. The parties may jointly agree to modify this limit without the court’s
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`leave. The court shall consider contested requests for additional or fewer custodians per producing
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`party, upon showing a distinct need based on the size, complexity, and issues of this specific case.
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`Each requesting party shall limit its e-mail production requests to a total of ten search terms
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`per custodian per party. The parties may jointly agree to modify this limit without the court’s leave.
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`The court shall consider contested requests for additional or fewer search terms per custodian,
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`upon showing a distinct need based on the size, complexity, and issues of this specific case. The
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`search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the
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`producing company’s name or its product name, are inappropriate unless combined with narrowing
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`search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of
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`multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as
`
`a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or
`
`“system”) broadens the search, and thus each word or phrase shall count as a separate search term
`
`unless they are variants of the same word or translations of the same word. Use of narrowing search
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`criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be considered
`
`when determining whether to shift costs for disproportionate discovery.
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`The parties agree to negotiate regarding e-mail production requests in good faith. To this
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`end, the producing party shall provide ESI Search Reports identifying the number of hits per search
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`
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`11
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7905 Filed 11/04/22 Page 13 of 26
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`term, the custodians run against each set of terms, date ranges for the searches, and the actual terms
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`used to the extent they differ from the e-mail production request due to a party’s technical
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`capability.
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`To the extent that a party intends to bring an employee-witness or corporate representative
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`to trial whose emails were not produced as part of an e-mail production request, that party shall
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`produce the witness’s email as described above, even if that would result in more than eight
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`custodians being subject to e-mail production requests. The producing party should identify the
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`witness with enough time to confer regarding the e-mail search terms and to produce the
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`documents sufficiently before trial to allow for their review.
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`If, after the identification and production of emails from the agreed-upon email custodians,
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`a producing party intends to rely on an email that has not been captured in the email productions,
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`the producing party must immediately give notice to the other side of such production and must
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`also make a reasonable effort to immediately review, collect, and produce all relevant, non-
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`privileged documents related to the produced e-mail document (including emails in the same
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`thread or chain and forwards of the produced email), irrespective of and notwithstanding any other
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`provision in the ESI Order. Additional document custodians under this subsection shall not be
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`counted against the limit of e-mail custodians.
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`To the extent that a party produces documents written in a language other than English,
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`that party shall also produce any English translations (whether certified, machine, or informal) that
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`are in its care, custody, or control.]
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`Privileged or work-product protected communications that post-date the filing of the
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`complaint in this litigation, involve counsel, and directly concern this litigation or inter partes
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`reviews involving the asserted patents need not be identified on a privilege log. Similarly,
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`12
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7906 Filed 11/04/22 Page 14 of 26
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`privileged or work-product protected communications from prior litigation involving the patents-
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`in-suit need not be identified on a privilege log. A party need include only one entry on the log
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`(including the names of all of the recipients of the communications) to identify withheld emails
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`that constitute an uninterrupted dialogue between or among individuals, provided that all
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`participants to any portion of such dialogue shall be included in the log entry if the log entry reflects
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`more than one email. The parties shall also log any redacted documents and identify those
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`document(s) by Bates number in the respective log entry(ies).
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`IV. DISCOVERY SCHEDULE
`
`A.
`
`FACT DISCOVERY
`
`Fact discovery shall [Plaintiff’s Proposal: commence on August 10, 2022/Defendant’s
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`Proposal: be stayed until thirty days after the issuance of the Court’s claim construction order, with
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`the exception of the initial disclosures which are due on September 15, 2022 and the parties’
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`contentions outlined below].. All written discovery requests shall be served no later than 30 days
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`prior to the close of fact discovery. [Plaintiff’s Proposal: Discovery shall begin on all discoverable
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`issues and shall not be limited to claim interpretation.] Discovery shall include any relevant
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`opinions of counsel if Defendants intend to rely upon an opinion of counsel as a defense to a claim
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`of willful infringement.
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`B.
`
`RULE 26(a)(1) INITIAL DISCLOSURES
`
`The parties will exchange the initial discovery disclosures required by Rule 26(a)(1) by
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`September 14, 2022.
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`[Defendant’s Proposal: As part of the initial disclosures, Plaintiff shall disclose Plaintiff’s
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`position regarding which of the asserted patents it considers “LTE standard essential” or 5G
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`standard essential; all information related to Plaintiff’s compliance with and/or agreements
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`13
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`Case 2:22-md-03034-TGB ECF No. 97-3, PageID.7907 Filed 11/04/22 Page 15 of 26
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`pertaining to its commitment to license the asserted patents on fair, reasonable, and non-
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`discriminatory (FRAND) terms (this obligation extends to any prior owners of the asserted
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`patents); Plaintiff’s licenses; Plaintiff’s settlement agreements concerning the patents-in-suit or
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`any related patent; and all agreements and documents pertaining to the chain of title of the asserted
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`patents.]
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`C.
`
`DEADLINE TO ADD PARTIES
`
`The deadline for adding parties is [Plaintiff’s Proposal: December 16, 2022/Defendant’s
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`Proposal: September 30, 2022]. The deadline for amending the pleadings is December 16, 2022.
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`D.
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`DISCLOSURE OF INFRINGEMENT CONTENTIONS
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`The patentee must file and serve disclosures of [Defendant’s Proposal: and an initial
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`document production that identifies, as specifically as possible,] the following information by
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`September 28, 2022:
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`a. [Plaintiff’s Proposal: Each patent claim that is allegedly infringed by each opposing
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`party/Defendant’s Proposal: An identification of no more than 10 claims of each
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`patent in suit that is allegedly infringed by each opposing party, but no more than
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`40 total claims]..
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`b. For each asserted claim, the accused product of each opposing party of which the
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`patentee is aware. This identification shall be as specific as possible. Plaintiff shall
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`identify each accused product by name or model number, if known.
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`c. A chart identifying specifically where each limitation of each asserted patent claim
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`is found within each accused product, including for each limitation that such party
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`contends is governed by 35 U.S.C. § 112 ¶ 6, the identity of the structure(s), act(s),
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`or material(s) in the accused product that performs the claimed function.
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`[Defendant’s Proposal: If the patentee alleges the patent is standard essential, the
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`chart must identify specifically which standard the patent is essential to, including
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`which version(s) and explain how the claims are mandatory to the standard].
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`d. Whether each claim limitation of each asserted claim is claimed to be literally
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`present or present under the doctrine of equivalents in the accused product.
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`[Defendant’s Proposal: For any claim under the doctrine of equivalents, the
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`contentions must include an explanation of each function, way, and result that is
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`equivalent and why any difference are not substantial].
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`e. [Defendant’s Proposal: For each claim that is alleged to be indirectly infringed, an
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`identification of any direct infringement and a description of the acts of the alleged
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`indirect infringer that contribute to or are inducing that direct infringement. If
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`alleged direct infringement is based on joint acts of multiple parties, the role of each
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`such party in the direct infringement must be described;
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`f. for any patent that claims priority to an earlier application, the priority date to which
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`each asserted claim allegedly is entitled;
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`g. identification of the basis for any allegation of willful infringement;
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`h. if a party claiming patent infringement wishes to preserve the right to rely, for any
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`purpose, on the assertion that its own or its licensee’s apparatus, product, device,
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`process, method, act, or other instrumentality practices the claimed invention, the
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`party must identify, separately for each asserted patent, each such apparatus,
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`product, device, process, method, act, or other instrumentality that incorporates or
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`reflects that particular claim, including whether it is marked (actually or virtually)
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`with the patent number; and
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`i. Production of a complete copy of the file histories for the patents-in-suit, including
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`related patents claiming priority from either the patents-in-suit or their parents,
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`foreign equivalents and their file histories.]
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`E.
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`DISCLOSURE OF INVALIDITY CONTENTIONS
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`Any party asserting invalidity or unenforceability claims/defenses must file and serve
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`disclosures and initial document production containing the following by [Plaintiff’s Proposal:
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`October 27, 2022/Defendant’s Proposal: November 16, 2022]. Defendants will file and serve all
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`disclosures jointly to the extent possible.
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`a.
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`Each item of prior art that forms the basis for any allegation of invalidity by
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`reason of anticipation under 35 U.S.C. § 102 or obviousness under 35
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`U.S.C. § 103. For prior art that is a document, a copy of the document
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`should be provided to the patentee’s counsel or be identified by Bates
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`Number if it was previously produced. As to prior art that is not
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`documentary in nature, such prior art shall be identified with particularity
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`(by “who, what, when, and where” etc.) as to publication date, sale date, use
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`date, source, ownership, inventorship, conception and any other pertinent
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`information.
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`b.
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`Whether each item of prior art anticipates each asserted claim or renders it
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`obvious. If a combination of items or prior art makes a claim obvious, each
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`such combination, and the reason why a person of ordinary skill in the art
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`would combine such items must be identified.
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`c.
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`A chart identifying where specifically in each alleged item of prior art each
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`limitation of each asserted claim is found, including for each claim
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`limitation that such party is governed by 35 U.S.C. § 112 ¶ 6, the identity
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`of the structure(s), act(s), or material(s) in each item of prior art that
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`performs the claimed function; and
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`d.
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`For any grounds of invalidity based on 35 U.S.C. § 112 or other defenses,
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`the party asserting the claim or defense shall provide its reasons and
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`evidence why the claims are invalid or the patent unenforceable and make
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`specific reference to relevant portions of the patent specification and/or
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`claims. Such positions shall be made in good faith and not simply pro forma
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`arguments.
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`F.
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`NON-INFRINGEMENT CONTENTIONS
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`On or before [Plaintiff’s Proposal: October 27, 2022/Defendant’s Proposal: December 22,
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`2022], Defendants shall jointly file and serve non-infringement contentions, which shall explain
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`the factual basis for any allegation that it does not infringe the patent-in-suit either literally or under
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`the doctrine of equivalents, including identifying what claim limitations that it believes are not
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`present in the accused products and why an equivalent is not present.
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`G.
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`RESPONSE
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`Proposal:
`[Defendant’s
`CONTENTIONS
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`On or before December 22, 2022, Plaintiff shall file its response to Defendants’ Invalidity
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`TO
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`INVALIDITY
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`Contentions. This response will include a chart, responsive to the chart required by Section III.E.c
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`of the Scheduling Order, that states as to each identified element in each asserted claim, to the
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`extent then known, whether the party admits to the identity of the elements in the prior art and, if
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`not, the reason for such denial.
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`H.F. DEADLINE
`INFRINGEMENT, NON-
`FOR AMENDING
`INFIRNGEMENT, INVALIDITY, [Defendant’s Proposal: AND
`VALIDITY]INVALIDITY CONTENTIONS
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`Each party shall seasonably amend any infringement, or invalidity, non-infringement
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`[Defendant’s Proposal: or validity] contention in accordance with Rule 26(e) of the Federal Rules
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`of Civil Procedure upon learning that the contention is incomplete or incorrect. The parties should
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`conduct timely discovery so that these contentions can be updated as soon as possible. Any
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`amendment to a party’s [Plaintiff’s Proposal: infringement, invalidity, or non-infringement
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`contentions, or other pleading, that is necessary due to the Court’s claim interpretation
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`ruling/Defendant’s Proposal burden contentions]infringement or validity contentions must be
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`timely made but in no event later than one month after the Court’s claim construction ruling.
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`[Plaintiff’s Proposal: The parties may not amend such contentions later than one month after the
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`Court’s claim construction ruling./Defendant’s Proposal: Any amendment to a party’s non-burden
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`contentions must be timely made but in no event later than two months after the Court’s claim
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`construction ruling.]. The parties may not amend such contentions after these deadlines absent
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`Case 2:22-md-0303