- Current as of May 6, 2015 (General Order 15-12)
`
`
`APPENDIX B
`PATENT RULES
`
`1. SCOPE OF RULES
`
`
`1-1. Title.
`
`These are the Rules of Practice for Patent Cases before the Eastern District of Texas. They
`should be cited as AP. R. __.@
`
`1-2. Scope and Construction.
`
`These rules apply to all civil actions filed in or transferred to this Court which allege
`infringement of a utility patent in a complaint, counterclaim, cross-claim or third party claim, or
`which seek a declaratory judgment that a utility patent is not infringed, is invalid or is
`unenforceable. The Court may accelerate, extend, eliminate, or modify the obligations or
`deadlines set forth in these Patent Rules based on the circumstances of any particular case,
`including, without limitation, the complexity of the case or the number of patents, claims,
`products, or parties involved. If any motion filed prior to the Claim Construction Hearing
`provided for in P. R. 4-6 raises claim construction issues, the Court may, for good cause shown,
`defer the motion until after completion of the disclosures, filings, or ruling following the Claim
`Construction Hearing. The Civil Local Rules of this Court shall also apply to these actions,
`except to the extent that they are inconsistent with these Patent Rules. The deadlines set forth in
`these rules may be modified by Docket Control Order issued in specific cases.
`
`1-3. Effective Date.
`
`These Patent Rules shall take effect on February 22, 2005 and shall apply to any case filed
`thereafter and to any pending case in which more than 9 days remain before the Initial
`Disclosure of Asserted Claims is made. The parties to any other pending civil action shall meet
`and confer promptly after February 22, 2005, for the purpose of determining whether any
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`provision in these Patent Rules should be made applicable to that case. No later than 7 days after
`the parties meet and confer, the parties shall file a stipulation setting forth a proposed order that
`relates to the application of these Patent Rules. Unless and until an order is entered applying
`these Patent Local Rules to any pending case, the Rules previously applicable to pending patent
`cases shall govern.
`
`
`
`2-1. Governing Procedure.
`
`(a) Initial Case Management Conference. Prior to the Initial Case Management Conference
`with the Court, when the parties confer with each other pursuant to Fed.R.Civ.P. 26(f), in
`addition to the matters covered by Fed.R.Civ.P. 26, the parties must discuss and address in the
`Case Management Statement filed pursuant to Fed.R.Civ.P. 26(f), the following topics:
`
`
`2. GENERAL PROVISIONS
`
`(1) Proposed modification of the deadlines provided for in the Patent Rules, and the
`effect of any such modification on the date and time of the Claim Construction Hearing,
`if any;
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`(2) Whether the Court will hear live testimony at the Claim Construction Hearing;
`
`(3) The need for and any specific limits on discovery relating to claim construction,
`including depositions of witnesses, including expert witnesses;
`
`(4) The order of presentation at the Claim Construction Hearing; and
`
`(5) The scheduling of a Claim Construction Prehearing Conference to be held after the
`Joint Claim Construction and Prehearing Statement provided for in P. R. 4-3 has been
`filed.
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`(6) Whether the court should authorize the filing under seal of any documents containing
`confidential information.
`
`
`
`(b) Further Case Management Conferences. To the extent that some or all of the matters
`provided for in P. R. 2-1 (a)(1)-(5) are not resolved or decided at the Initial Case Management
`Conference, the parties shall propose dates for further Case Management Conferences at which
`such matters shall be decided.
`
`(c) Electronic Filings. All patents attached as exhibits to any filing submitted electronically
`shall be in searchable PDF format. Any other documents attached as exhibits to any filing
`submitted electronically should be in searchable PDF format whenever possible.
`
`2-2. Confidentiality.
`
`If any document or information produced under these Patent Local Rules is deemed confidential
`by the producing party and if the Court has not entered a protective order, until a protective order
`is issued by the Court, the document shall be marked Aconfidential@ or with some other
`confidential designation (such as AConfidential B Outside Attorneys Eyes Only@) by the
`disclosing party and disclosure of the confidential document or information shall be limited to
`each party’s outside attorney(s) of record and the employees of such outside attorney(s).
`
`If a party is not represented by an outside attorney, disclosure of the confidential document or
`information shall be limited to one designated Ain house@ attorney, whose identity and job
`functions shall be disclosed to the producing party 5 days prior to any such disclosure, in order
`to permit any motion for protective order or other relief regarding such disclosure. The person(s)
`to whom disclosure of a confidential document or information is made under this local rule shall
`keep it confidential and use it only for purposes of litigating the case.
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`2-3. Certification of Initial Disclosures.
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`All statements, disclosures, or charts filed or served in accordance with these Patent Rules must
`be dated and signed by counsel of record. Counsel’s signature shall constitute a certification that
`to the best of his or her knowledge, information, and belief, formed after an inquiry that is
`reasonable under the circumstances, the information contained in the statement, disclosure, or
`chart is complete and correct at the time it is made.
`
`2-4. Admissibility of Disclosures.
`
`Statements, disclosures, or charts governed by these Patent Rules are admissible to the extent
`permitted by the Federal Rules of Evidence or Procedure. However, the statements or disclosures
`provided for in P. R. 4-1 and 4-2 are not admissible for any purpose other than in connection
`with motions seeking an extension or modification of the time periods within which actions
`contemplated by these Patent Rules must be taken.
`
`2-5. Relationship to Federal Rules of Civil Procedure.
`
`Except as provided in this paragraph or as otherwise ordered, it shall not be a legitimate ground
`for objecting to an opposing party’s discovery request (e.g., interrogatory, document request,
`request for admission, deposition question) or declining to provide information otherwise
`required to be disclosed pursuant to Fed.R.Civ.P. 26(a)(1) that the discovery request or
`disclosure requirement is premature in light of, or otherwise conflicts with, these Patent Rules. A
`party may object, however, to responding to the following categories of discovery requests (or
`decline to provide information in its initial disclosures under Fed.R.Civ.P. 26(a)(1)) on the
`ground that they are premature in light of the timetable provided in the Patent Rules:
`
`(a) Requests seeking to elicit a party’s claim construction position;
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`(b) Requests seeking to elicit from the patent claimant a comparison of the asserted claims and
`the accused apparatus, product, device, process, method, act, or other instrumentality;
`
`(c) Requests seeking to elicit from an accused infringer a comparison of the asserted claims and
`the prior art; and
`
`(d) Requests seeking to elicit from an accused infringer the identification of any opinions of
`counsel, and related documents, that it intends to rely upon as a defense to an allegation of
`willful infringement.
`
`Where a party properly objects to a discovery request (or declines to provide information in its
`initial disclosures under Fed.R.Civ.P. 26(a)(1)) as set forth above, that party shall provide the
`requested information on the date on which it is required to provide the requested information to
`an opposing party under these Patent Rules, unless there exists another legitimate ground for
`objection.
`
`2-6. Assignment of Related Cases. Separately filed cases related to the same patent shall be
`assigned to the same judge, i.e., the judge assigned to the first related case.
`
`
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`3-1. Disclosure of Asserted Claims and Infringement Contentions.
`
`Not later than 10 days before the Initial Case Management Conference with the Court, a party
`claiming patent infringement must serve on all parties a ADisclosure of Asserted Claims and
`Infringement Contentions.@ Separately for each opposing party, the ADisclosure of Asserted
`Claims and Infringement Contentions@ shall contain the following information:
`
`(a) Each claim of each patent in suit that is allegedly infringed by each opposing party;
`
`3. PATENT INITIAL DISCLOSURES
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`(b) Separately for each asserted claim, each accused apparatus, product, device, process, method,
`act, or other instrumentality (AAccused Instrumentality@) of each opposing party of which the
`party is aware. This identification shall be as specific as possible. Each product, device, and
`apparatus must be identified by name or model number, if known. Each method or process must
`be identified by name, if known, or by any product, device, or apparatus which, when used,
`allegedly results in the practice of the claimed method or process;
`
`(c) A chart identifying specifically where each element of each asserted claim is found within
`each Accused Instrumentality, including for each element that such party contends is governed
`by 35 U.S.C. ' 112(6), the identity of the structure(s), act(s), or material(s) in the Accused
`Instrumentality that performs the claimed function;
`
`(d) Whether each element of each asserted claim is claimed to be literally present or present
`under the doctrine of equivalents in the Accused Instrumentality;
`
`(e) For any patent that claims priority to an earlier application, the priority date to which each
`asserted claim allegedly is entitled; and
`
`(f) If a party claiming patent infringement wishes to preserve the right to rely, for any purpose,
`on the assertion that its own apparatus, product, device, process, method, act, or other
`instrumentality practices the claimed invention, the party must identify, separately for each
`asserted claim, each such apparatus, product, device, process, method, act, or other
`instrumentality that incorporates or reflects that particular claim.
`
`3-2. Document Production Accompanying Disclosure.
`
`With the ADisclosure of Asserted Claims and Infringement Contentions,@ the party claiming
`patent infringement must produce to each opposing party or make available for inspection and
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`copying:
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`(a) Documents (e.g., contracts, purchase orders, invoices, advertisements, marketing materials,
`offer letters, beta site testing agreements, and third party or joint development agreements)
`sufficient to evidence each discussion with, disclosure to, or other manner of providing to a third
`party, or sale of or offer to sell, the claimed invention prior to the date of application for the
`patent in suit. A party’s production of a document as required herein shall not constitute an
`admission that such document evidences or is prior art under 35 U.S.C. ' 102;
`
`(b) All documents evidencing the conception, reduction to practice, design, and development of
`each claimed invention, which were created on or before the date of application for the patent in
`suit or the priority date identified pursuant to P. R. 3-1(e), whichever is earlier; and
`
`(c) A copy of the file history for each patent in suit.
`
`The producing party shall separately identify by production number which documents
`correspond to each category.
`
`3-3. Invalidity Contentions.
`
`Not later than 45 days after service upon it of the ADisclosure of Asserted Claims and
`Infringement Contentions,@ each party opposing a claim of patent infringement, shall serve on all
`parties its AInvalidity Contentions@ which must contain the following information:
`
`(a) The identity of each item of prior art that allegedly anticipates each asserted claim or renders
`it obvious. Each prior art patent shall be identified by its number, country of origin, and date of
`issue. Each prior art publication must be identified by its title, date of publication, and where
`feasible, author and publisher. Prior art under 35 U.S.C. ' 102(b) shall be identified by
`specifying the item offered for sale or publicly used or known, the date the offer or use took
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`place or the information became known, and the identity of the person or entity which made the
`use or which made and received the offer, or the person or entity which made the information
`known or to whom it was made known. Prior art under 35 U.S.C. ' 102(f) shall be identified by
`providing the name of the person(s) from whom and the circumstances under which the
`invention or any part of it was derived. Prior art under 35 U.S.C. ' 102(g) shall be identified by
`providing the identities of the person(s) or entities involved in and the circumstances
`surrounding the making of the invention before the patent applicant(s);
`
`(b) Whether each item of prior art anticipates each asserted claim or renders it obvious. If a
`combination of items of prior art makes a claim obvious, each such combination, and the
`motivation to combine such items, must be identified;
`
`(c) A chart identifying where specifically in each alleged item of prior art each element of each
`asserted claim is found, including for each element that such party contends is governed by 35
`U.S.C. ' 112(6), the identity of the structure(s), act(s), or material(s) in each item of prior art that
`performs the claimed function; and
`
`(d) Any grounds of invalidity based on indefiniteness under 35 U.S.C. ' 112(2) or enablement or
`written description under 35 U.S.C. ' 112(1) of any of the asserted claims.
`
`3-4. Document Production Accompanying Invalidity Contentions.
`
`With the AInvalidity Contentions,@ the party opposing a claim of patent infringement must
`produce or make available for inspection and copying:
`
`(a) Source code, specifications, schematics, flow charts, artwork, formulas, or other
`documentation sufficient to show the operation of any aspects or elements of an Accused
`Instrumentality identified by the patent claimant in its P. R. 3-1(c) chart; and
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`(b) A copy of each item of prior art identified pursuant to P. R. 3-3(a) which does not appear in
`the file history of the patent(s) at issue. To the extent any such item is not in English, an English
`translation of the portion(s) relied upon must be produced.
`
`3-5. Disclosure Requirement in Patent Cases for Declaratory Judgment.
`
`(a) Invalidity Contentions If No Claim of Infringement. In all cases in which a party files a
`complaint or other pleading seeking a declaratory judgment that a patent is not infringed, is
`invalid, or is unenforceable, P. R. 3-1 and 3-2 shall not apply unless and until a claim for patent
`infringement is made by a party. If the defendant does not assert a claim for patent infringement
`in its answer to the complaint, no later than 10 days after the defendant serves its answer, or 10
`days after the Initial Case Management Conference, whichever is later, the party seeking a
`declaratory judgment must serve upon each opposing party its Invalidity Contentions that
`conform to P. R. 3-3 and produce or make available for inspection and copying the documents
`described in P. R. 3-4. The parties shall meet and confer within 10 days of the service of the
`Invalidity Contentions for the purpose of determining the date on which the plaintiff will file its
`Final Invalidity Contentions which shall be no later than 50 days after service by the Court of its
`Claim Construction Ruling.
`
`(b) Applications of Rules When No Specified Triggering Event. If the filings or actions in a
`case do not trigger the application of these Patent Rules under the terms set forth herein, the
`parties shall, as soon as such circumstances become known, meet and confer for the purpose of
`agreeing on the application of these Patent Rules to the case.
`
`(c) Inapplicability of Rule. This P. R. 3-5 shall not apply to cases in which a request for a
`declaratory judgment that a patent is not infringed, is invalid, or is unenforceable is filed in
`response to a complaint for infringement of the same patent.
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`3-6. Amending Contentions.
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`(a) Leave not required. Each party’s AInfringement Contentions@ and AInvalidity Contentions@
`shall be deemed to be that party’s final contentions, except as set forth below.
`
`
`(1) If a party claiming patent infringement believes in good faith that the Court’s Claim
`Construction Ruling so requires, not later than 30 days after service by the Court of its
`Claim Construction Ruling, that party may serve AAmended Infringement Contentions@
`without leave of court that amend its AInfringement Contentions@ with respect to the
`information required by Patent R. 3-1(c) and (d).
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`(2) Not later than 50 days after service by the Court of its Claim Construction Ruling,
`each party opposing a claim of patent infringement may serve AAmended Invalidity
`Contentions@ without leave of court that amend its AInvalidity Contentions@ with respect
`to the information required by P. R. 3-3 if:
`
`(A) a party claiming patent infringement has served AInfringement Contentions@
`pursuant to P. R. 3-6(a), or
`
`(B) the party opposing a claim of patent infringement believes in good faith that
`the Court’s Claim Construction Ruling so requires.
`
`
`(b) Leave required. Amendment or supplementation any Infringement Contentions or
`Invalidity Contentions, other than as expressly permitted in P. R. 3-6(a), may be made only by
`order of the Court, which shall be entered only upon a showing of good cause.
`
`3-7 Opinion of Counsel Defenses.
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`By the date set forth in the Docket Control Order, each party opposing a claim of patent
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`infringement that will rely on an opinion of counsel as part of a defense shall:
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`(a) Produce or make available for inspection and copying the opinion(s) and any other
`documents relating to the opinion(s) as to which that party agrees the attorney-client or work
`product protection has been waived; and
`
`(b) Serve a privilege log identifying any other documents, except those authored by counsel
`acting solely as trial counsel, relating to the subject matter of the opinion(s) which the party is
`withholding on the grounds of attorney-client privilege or work product protection.
`
` A
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` party opposing a claim of patent infringement who does not comply with the requirements of
`this P. R. 3-7 shall not be permitted to rely on an opinion of counsel as part of a defense absent a
`stipulation of all parties or by order of the Court, which shall be entered only upon a showing of
`good cause.
`
`3-8. Disclosure Requirements for Patent Cases Arising Under 21 U.S.C. ' 355
`(Hatch-Waxman Act).
`
`
`The following provision applies to all patents subject to a Paragraph IV certification in cases
`arising under 21 U.S.C. ' 355 (commonly referred to as Athe Hatch-Waxman Act@). This
`provision takes precedence over any conflicting provisions in P.R. 3-1 to 3-5 for all cases arising
`under 21 U.S.C. ' 355.
`
`(a) Upon the filing of a responsive pleading to the complaint, the Defendant(s) shall produce to
`Plaintiff(s) the entire Abbreviated New Drug Application or New Drug Application that is the
`basis of the case in question.
`
`(b) Not more than 7 days after the Initial Case Management Conference, Plaintiff(s) must
`identify the asserted claims.
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`(c) Not more than 14 days after the Initial Case Management Conference, the Defendant(s) shall
`provide to Plaintiff(s) the written basis for their AInvalidity Contentions@ for any patents referred
`to in Defendant(s) Paragraph IV Certification. This written basis shall contain all disclosures
`required by P.R. 3-3 and shall be accompanied by the production of documents required by P.R.
`3-4.
`
`(d) Not more than 14 days after the Initial Case Management Conference, the Defendant(s) shall
`provide to Plaintiff(s) the written basis for any defense of non-infringement for any patent
`referred to in Defendant(s) Paragraph IV Certification. This written basis shall include a claim
`chart identifying each claim at issue in the case and each limitation of each claim at issue. The
`claim chart shall specifically identify for each claim those claim limitation(s) that are literally
`absent from the Defendant(s) allegedly infringing Abbreviated New Drug Application or New
`Drug Application. The written basis for any defense of non-infringement shall also be
`accompanied by the production of any document or thing that the Defendant(s) intend to rely
`upon in defense of any infringement allegations by Plaintiff(s).
`
`(e) Not more than 45 days after the disclosure of the written basis for any defense of
`non-infringement as required by P.R. 3-8(c), Plaintiff(s) shall provide Defendant(s) with a
`ADisclosure of Asserted Claims and Infringement Contentions,@ for all patents referred to in
`Defendant(s) Paragraph IV Certification, which shall contain all disclosures required by P.R. 3-1
`and shall be accompanied by the production of documents required by P.R. 3-2.
`
`(f) Each party that has an ANDA application pending with the Food and Drug Administration
`(“FDA”) that is the basis of the pending case shall: (1) notify the FDA of any and all motions for
`injunctive relief no later than three business days after the date on which such a motion is filed;
`and (2) provide a copy of all correspondence between itself and the FDA pertaining to the
`ANDA application to each party asserting infringement, or set forth the basis of any claim of
`privilege for such correspondence, no later than seven days after the date it sends or receives any
`such correspondence.
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`4. CLAIM CONSTRUCTION PROCEEDINGS
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`(g) Unless informed of special circumstances, the Court intends to set all Hatch-Waxman cases
`for final pretrial hearing at or near 24 months from the date of the filing of the complaint.
`
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`
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`4-1. Exchange of Proposed Terms and Claim Elements for Construction.
`
`(a) Not later than 10 days after service of the AInvalidity Contentions@ pursuant to P. R. 3-3, each
`party shall simultaneously exchange a list of claim terms, phrases, or clauses which that party
`contends should be construed by the Court, and identify any claim element which that party
`contends should be governed by 35 U.S.C. ' 112(6).
`
`(b) The parties shall thereafter meet and confer for the purposes of finalizing this list, narrowing
`or resolving differences, and facilitating the ultimate preparation of a Joint Claim Construction
`and Prehearing Statement.
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`4-2. Exchange of Preliminary Claim Constructions and Extrinsic Evidence.
`
`(a) Not later than 20 days after the exchange of AProposed Terms and Claim Elements for
`Construction@ pursuant to P. R. 4-1, the parties shall simultaneously exchange a preliminary
`proposed construction of each claim term, phrase, or clause which the parties collectively have
`identified for claim construction purposes. Each such APreliminary Claim Construction@ shall
`also, for each element which any party contends is governed by 35 U.S.C. ' 112(6), identify the
`structure(s), act(s), or material(s) corresponding to that element.
`
`(b) At the same time the parties exchange their respective APreliminary Claim Constructions,@
`they shall each also provide a preliminary identification of extrinsic evidence, including without
`limitation, dictionary definitions, citations to learned treatises and prior art, and testimony of
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`percipient and expert witnesses they contend support their respective claim constructions. The
`parties shall identify each such item of extrinsic evidence by production number or produce a
`copy of any such item not previously produced. With respect to any such witness, percipient or
`expert, the parties shall also provide a brief description of the substance of that witness’
`proposed testimony.
`
`(c) The parties shall thereafter meet and confer for the purposes of narrowing the issues and
`finalizing preparation of a Joint Claim Construction and Prehearing Statement.
`
`4-3. Joint Claim Construction and Prehearing Statement.
`
`Not later than 60 days after service of the AInvalidity Contentions,@ the parties shall complete and
`file a Joint Claim Construction and Prehearing Statement, which shall contain the following
`information:
`
`(a) The construction of those claim terms, phrases, or clauses on which the parties agree;
`
`(b) Each party’s proposed construction of each disputed claim term, phrase, or clause, together
`with an identification of all references from the specification or prosecution history that support
`that construction, and an identification of any extrinsic evidence known to the party on which it
`intends to rely either to support its proposed construction of the claim or to oppose any other
`party’s proposed construction of the claim, including, but not limited to, as permitted by law,
`dictionary definitions, citations to learned treatises and prior art, and testimony of percipient and
`expert witnesses;
`
`(c) The anticipated length of time necessary for the Claim Construction Hearing;
`
`(d) Whether any party proposes to call one or more witnesses, including experts, at the Claim
`Construction Hearing, the identity of each such witness, and for each expert, a summary of each
`
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`opinion to be offered in sufficient detail to permit a meaningful deposition of that expert; and
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`(e) A list of any other issues which might appropriately be taken up at a prehearing conference
`prior to the Claim Construction Hearing, and proposed dates, if not previously set, for any such
`prehearing conference.
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`4-4. Completion of Claim Construction Discovery.
`
`Not later than 30 days after service and filing of the Joint Claim Construction and Prehearing
`Statement, the parties shall complete all discovery relating to claim construction, including any
`depositions with respect to claim construction of any witnesses, including experts, identified in
`the Joint Claim Construction and Prehearing Statement.
`
`4-5. Claim Construction Briefs.
`
`(a) Not later than 45 days after serving and filing the Joint Claim Construction and Prehearing
`Statement, the party claiming patent infringement shall serve and file an opening brief and any
`evidence supporting its claim construction. All asserted patents shall be attached as exhibits to
`the opening claim construction brief in searchable PDF form.
`
`(b) Not later than 14 days after service upon it of an opening brief, each opposing party shall
`serve and file its responsive brief and supporting evidence.
`
`(c) Not later than 7 days after service upon it of a responsive brief, the party claiming patent
`infringement shall serve and file any reply brief and any evidence directly rebutting the
`supporting evidence contained in an opposing party’s response.
`
`(d) At least 10 days before the Claim Construction Hearing held pursuant to P.R. 4-6, the parties
`shall jointly file a claim construction chart.
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`(1) Said chart shall have a column listing complete language of disputed claims with
`disputed terms in bold type and separate columns for each party’s proposed construction
`of each disputed term. The chart shall also include a fourth column entitled ACourt’s
`Construction@ and otherwise left blank. Additionally, the chart shall also direct the
`Court’s attention to the patent and claim number(s) where the disputed term(s) appear(s).
`
`(2) The parties may also include constructions for claim terms to which they have agreed.
`If the parties choose to include agreed constructions, each party’s proposed construction
`columns shall state A[AGREED]@ and the agreed construction shall be inserted in the
`ACourt’s Construction@ column.
`
`(3) The purpose of this claim construction chart is to assist the Court and the parties in
`tracking and resolving disputed terms. Accordingly, aside from the requirements set
`forth in this rule, the parties are afforded substantial latitude in the chart’s format so that
`they may fashion a chart that most clearly and efficiently outlines the disputed terms and
`proposed constructions. Appendices to the Court’s prior published and unpublished
`claim construction opinions may provide helpful guidelines for parties fashioning claim
`construction charts.
`
`
`(e) Unless otherwise ordered by the Court, the page limitations governing dispositive motions
`pursuant to Local Rule CV-7(a) shall apply to claim construction briefing.
`
`4-6. Claim Construction Hearing.
`
`Subject to the convenience of the Court’s calendar, two weeks following submission of the reply
`brief specified in P.R. 4-5(c), the Court shall conduct a Claim Construction Hearing, to the
`extent the parties or the Court believe a hearing is necessary for construction of the claims at
`issue.
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