Case 1:20-cv-00755-RGA Document 20 Filed 07/31/20 Page 1 of 12 PageID #: 198
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`UNITED THERAPEUTICS
`CORPORATION,
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`Plaintiff,
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`v.
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`LIQUIDIA TECHNOLOGIES, INC.,
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`Defendant.
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`)
`)
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`C.A. No. 20-755 (RGA)
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`SCHEDULING ORDER
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`31
`This __ day of ________, 2020, the Court having conducted an initial Rule 16(b)
`July
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`scheduling conference pursuant to Local Rule 16.1(b), and the parties having determined after
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`discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation,
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`or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(l) Initial Disclosures. Unless otherwise agreed to by the parties, the
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`parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(l) on
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`or before August 14, 2020.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before June 4, 2021.
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`3.
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`Discovery.
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`a.
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`Discovery Cut Off. All fact discovery in this case shall be initiated so that
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`it will be completed on or before September 17, 2021.
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`b.
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`Document production. Document production shall be substantially
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`complete by June 18, 2021.
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`United Therapeutics EX2014
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`
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`c.
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`Requests for Admission. A maximum of 40 requests for admission are
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`permitted for each side. These limitations do not apply to requests for admission directed to
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`the authentication of documents under Federal Rule of Evidence 901 or the business record
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`exception under Federal Rule of Evidence 803(6), subject to objections to undue burden.
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`d.
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`Interrogatories. A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`e.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery of Fact Witnesses.
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`Each side is limited to a total of 100 hours of taking testimony by deposition upon oral
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`examination. Individual depositions, including Rule 30(b)(6) depositions, are limited to seven (7)
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`hours. For clarity, the hours limitations described in this paragraph do not apply to expert
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`witnesses.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, managing agent, or 30(b)(6) designee) of a party filing a civil action in this district must
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`ordinarily be required, upon request, to submit to a deposition at a place designated within this
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`district. Exceptions to this general rule may be made by order of the Court or by agreement of
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`the parties. A defendant who becomes a cross-claimant or third-party plaintiff shall be
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`considered as having filed an action in this Court for the purposes of this provision.
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`iii.
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`Remote Depositions. Should it become infeasible to conduct in-
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`person depositions of a fact or expert witness due to safety, personal health, and/or public health
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`concerns, (e.g., as resulting from a pandemic or other such emergency), the party offering the
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`witness for deposition shall make
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`the witness available for remote deposition via
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`videoconference. The parties shall meet and confer 30 days in advance of, or as soon as possible
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`2
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`following notice of, any remote deposition to determine the procedures by which the deposition
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`shall be conducted.
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`f.
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find they are unable to resolve a discovery matter or a dispute relating to a protective
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`order, the parties involved in the discovery matter or protective order dispute shall contact the
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`Court’s Case Manager to schedule an in-person conference/argument. Unless otherwise ordered,
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`by no later than seven business days prior to the conference/argument, any party seeking relief
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`shall file with the Court a letter, not to exceed three pages, outlining the issues in dispute and its
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`position on those issues. By no later than five business days prior to the conference/argument,
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`any party opposing the application for relief may file a letter, not to exceed three pages, outlining
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`that party’s opposition. A party should include with its letter a proposed order with a detailed
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`issue-by-issue ruling such that, should the Court agree with the party on a particular issue, the
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`Court could sign the proposed order as to that issue, and the opposing party would be able to
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`understand what it needs to do, and by when, to comply with the Court’s order. Any proposed
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`order
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`shall
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`be
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`e-mailed,
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`in Word
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`format,
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`simultaneously with
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`filing
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`to
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`rga_civil@ded.uscourts.gov.
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`If a discovery-related motion is filed without leave of the Court, it will be denied without
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`prejudice to the moving party’s right to bring the dispute to the Court through the discovery
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`matters procedures set forth in this Order.
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`g.
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`Miscellaneous Discovery Matters.
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`i.
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`Unless otherwise agreed to by the parties or as set forth herein, the
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`parties agree to follow the Court’s Default Standard. The parties agree to the timetable for initial
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`patent disclosures as set forth in the chart attached as Exhibit A.
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`3
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`ii.
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`The parties agree to modify the Default Standard such that:
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`Paragraph 3 disclosures will be due on August 31, 2020; Paragraph 4(a) obligations will be due
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`on August 31, 2020; Paragraph 4(b) obligations concerning the production of Defendant’s core
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`technical documents will be due on September 11, 2020; Paragraph 4(c) obligations will be due
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`on October 16, 2020; and Paragraph 4(d) obligations will be due on November 13, 2020.
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`iii.
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`The parties agree to reasonably cooperate to arrive at an agreed
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`upon list of metadata fields, not to exceed the list of fields identified in Paragraph 5(e).
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`iv.
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`On March 30, 2020, Liquidia filed petitions to institute Inter
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`Partes Review proceedings with respect to both U.S. Patent No. 9,593,066, and U.S. Patent No.
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`9,604,901. Plaintiff does not yet have a comprehensive understanding of Defendant’s accused
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`NDA product, and therefore cannot advise whether it expects to institute any further litigation
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`within the next year. As Plaintiff’s U.S. Patent No. 10,716,793 issued on July 21, 2020,
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`Defendant does not yet have a comprehensive understanding of Plaintiff’s claims regarding the
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`ʼ793 patent, and therefore cannot advise whether it expects to file any further Inter Partes
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`Review proceedings concerning the ʼ793 patent within the next year.
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`v.
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`Narrowing of the Asserted Claims and Prior Art References. The
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`parties shall meet and confer regarding asserted claims and prior art narrowing, including limits
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`on the number of Plaintiff’s asserted claims and Defendant’s asserted prior art references or
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`combinations and any other relevant issue. The parties shall raise any unresolved issues with the
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`Court pursuant to the provisions of Paragraph 3(f), above, so as to be resolved sufficiently ahead
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`of each deadline set forth below.
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`vi.
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`Within
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`twenty-one days of
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`the Court’s Order on claim
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`construction, or if no claim construction is requested, on July 1, 2021, Plaintiff shall serve an
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`4
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`election of asserted claims, not to exceed a limit agreed upon by the parties or ordered by the
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`Court.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within ten days from the date of this
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`Order. Should counsel be unable to reach an agreement on a proposed form of order, counsel
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`must follow the provisions of Paragraph 3(f) 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 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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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk the required number of copies as directed in paragraph 6. A redacted version of any
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`sealed document shall be filed electronically within seven days of the filing of the sealed
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`document.
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`6.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`briefs and one courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
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`under seal.
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`7.
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`Claim Construction Issue Identification. On or before December 4, 2020, the
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`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need construction;
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`5
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`on or before December 18, 2020, the parties shall exchange their proposed claim construction of
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`those term(s)/phrase(s). These documents will not be filed with the Court. Subsequent to
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`exchanging those lists, the parties will meet and confer to prepare a Joint Claim Construction
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`Chart to be filed no later than January 8, 2021. The Joint Claim Construction Chart, in Word
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`format shall be e-mailed simultaneously with filing to rga_civil@ded.uscourts.gov. The parties’
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`Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s)
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`in issue, and should include each party’s proposed construction of the disputed claim language
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`with citation(s) only to the intrinsic evidence in support of their respective proposed
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`constructions. A copy of the patent(s) in issue as well as those portions of the intrinsic record
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`relied upon shall be submitted with this Joint Claim Construction Chart. In this joint submission,
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`the parties shall not provide argument.
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`8.
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`Claim Construction Briefing.1 Plaintiff shall serve, but not file, its opening brief,
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`not to exceed 5,000 words, on February 5, 2021. Defendant shall serve, but not file, its
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`answering brief, not to exceed 7,500 words, on March 5, 2021. Plaintiff shall serve, but not file,
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`its reply brief, not to exceed 5,000 words, on April 2, 2021. Defendant shall serve, but not file
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`its sur-reply brief, not to exceed 2,500 words, on April 23, 2021. No later than April 30, 2021,
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`the parties shall file a Joint Claim Construction Brief. The parties shall copy and paste their
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`unfiled briefs into one brief, with their positions on each claim term in sequential order, in
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`substantially the form below.
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`1 As each brief is written and provided to the opposing party, the individual responsible for
`verifying the word count will represent to the other party that it has so verified and by what
`means. These verifications should not be provided to the Court unless a dispute arises about
`them. Pictures, Figures copied from the patent, and other illustrations do not count against the
`word limit. Plaintiff should include with its opening brief one or more representative claims with
`the disputed terms italicized. Should Defendant want to add additional representative claims,
`Defendant may do so. The representative claims and the agreed-upon claim constructions do not
`count against the word limits.
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`6
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I. Representative Claims
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`II. Agreed-upon Constructions
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`III. Disputed Constructions
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`A. [TERM 1]
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`1. Plaintiff's Opening Position
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`2. Defendant's Answering Position
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`3. Plaintiff's Reply Position
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`4. Defendant's Sur-Reply Position
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`B. [TERM 2]
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`1. Plaintiff's Opening Position
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`2. Defendant's Answering Position
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`3. Plaintiff's Reply Position
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`4. Defendant's Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`9.
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`Hearing on Claim Construction. Beginning at 9:00 a.m. on May 24, 2021, the
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`Court will hear argument on claim construction. Absent prior approval of the Court (which, if it
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`is sought, must be done so by joint letter submission no later than the date on which answering
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`claim construction briefs are due), the parties shall not present testimony at the argument, and the
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`argument shall not exceed a total of three hours. When the Joint Claim Construction Brief is
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`filed, the parties shall simultaneously file a motion requesting the above scheduled claim
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`7
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`
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`construction hearing, state that the briefing is complete, and state how much total time the parties
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`are requesting that the Court should allow for the argument.
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`10.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who 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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`October 15, 2021. The supplemental disclosure to contradict or rebut evidence on the same
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`matter identified by another party is due on or before November 12, 2021. Reply expert reports
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`from the party with the initial burden of proof are due on or before December 10, 2021. No other
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`expert reports will be permitted without either the consent of all parties or leave of the Court. If
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`any party believes that an expert report does not comply with the rules relating to timely
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`disclosure or exceeds the scope of what is permitted in that expert report, the complaining party
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`must notify the offending party within one week of the submission of the expert report. The
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`parties are expected to promptly try to resolve any such disputes, and, when they cannot
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`reasonably be resolved, use the Court's Discovery Dispute Procedure or the complaint will be
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`waived.
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`Along with the submissions of the expert reports, the parties shall advise of the dates and
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`times of their experts' availability for deposition. Depositions of experts shall be completed on or
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`before January 14, 2022.
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`b.
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`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 Pharm., Inc. ,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made in the
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`parties’ pre-trial submissions. The parties will meet and confer within 5 days of the close of
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`expert discovery to address Daubert issues, if any, and proposed letter briefing schedule. The
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`8
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`Daubert request and any response shall contain the authorities relied upon; each Daubert request
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`may be supported by a maximum of three pages of argument and may be opposed by a
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`maximum of three pages of argument, and the party making the Daubert request may add a
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`maximum of one additional page in reply in support of its request.
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`11.
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`Case Dispositive Motions. No case dispositive motions shall be filed without
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`leave of Court. The parties may file a request for leave of the Court to file any case dispositive
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`motion(s) under Rule 56 no later than November 2, 2021.
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`12.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the 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.
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`13.
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`Pretrial Conference. On March 4, 2022, the Court will hold a Rule 16(e) final
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`pretrial conference in Court with counsel beginning at 9:00 a.m. The parties shall file a joint
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`proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5:00 p.m. on
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`February 28, 2022. Unless otherwise ordered by the Court, the parties shall comply with the
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`timeframes set forth in Local Rule 16.3(d) for the preparation of the proposed joint final pretrial
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`order.
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`14. Motions in Limine. Motions in limine shall be separately filed, with each motion
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`containing all the argument described below in one filing for each motion. The parties will meet
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`and confer within 5 days of the close of expert discovery to address in limine issues, if any, and
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`proposed letter briefing schedule. Any supporting documents in connection with a motion in
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`limine shall be filed in one filing separate from the motion in limine. Each party shall be limited
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`to three in limine requests, unless otherwise permitted by the Court. The in limine request and
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`any response shall contain the authorities relied upon; each in limine request may be supported
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`9
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`by a maximum of three pages of argument and may be opposed by a maximum of three pages of
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`argument, and the party making the in limine request may add a maximum of one additional page
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`in reply in support of its request. If more than one party is supporting or opposing an in limine
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`request, such support or opposition shall be combined in a single three page submission (and, if
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`the moving party, a single one page reply). No separate briefing shall be submitted on in limine
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`requests, unless otherwise permitted by the Court.
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`15.
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`Trial. This matter is scheduled for a three-day bench trial with trial days from
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`8:30 to 5:00, commencing on March 28, 2022, subject to the Court’s availability. The trial will
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`be timed, as counsel will be allocated a total of ten and one half (10½) hours in which to present
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`their respective cases.
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`16.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution. This matter is referred to a magistrate judge to
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`handle all discovery disputes including any that arise in connection with expert reports.
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`17.
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`Electronic Service. Pursuant to Federal Rule of Civil Procedure 5(b)(2)(E), the
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`parties agree to accept service by electronic means.
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`/s/ Richard G. Andrews
`_______________________________
`UNITED STATES DISTRICT JUDGE
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`10
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`EVENT
`Rule 26(a)(l) Initial Disclosures
`Deadline for Plaintiff’s’’ identification
`of the accused product(s), patents-in-
`suit, and production of file history of
`each patent-in-suit pursuant to Delaware
`Default Standard for Discovery
`Paragraph 4(a)
`Deadline to submit Protective Order
`Deadline for initial disclosures pursuant
`to Delaware Default Standard for
`Discovery Paragraph 3
`Deadline for production of Defendant’s
`core technical documents pursuant to
`Delaware Default Standard for
`Discovery Paragraph 4(b)
`Deadline for Plaintiff’s disclosure of
`asserted claims and initial infringement
`contentions pursuant to Delaware
`Default Standard for Discovery
`Paragraph 4(c)
`Deadline for Defendant’s initial
`invalidity contentions and production of
`invalidity references pursuant to
`Delaware Default Standard for
`Discovery Paragraph 4(d)
`Deadline to simultaneously exchange a
`list of claim term(s)/phrase(s) for
`construction
`Deadline to simultaneously exchange
`proposed constructions of identified
`term(s)/phrase(s)
`Deadline to submit Joint Claim
`Construction Chart
`Deadline to serve Plaintiff’s Opening
`Claim Construction Brief
`Deadline to serve Defendant’s
`Answering Claim Construction Brief
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`EXHIBIT A
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`PROPOSED SCHEDULE (DISPUTES IDENTIFIED)
`August 14, 2020
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`August 31, 2020
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`Within 10 days of the date the Court enters this Order
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`August 31, 2020
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`September 11, 2020
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`October 16, 2020
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`November 13, 2020
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`December 4, 2020
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`December 18, 2020
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`January 8, 2021
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`February 5, 2021
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`March 5, 2021
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`Deadline to serve Plaintiff’s Reply
`Claim Construction Brief
`Deadline to serve Defendant’s Sur-
`Reply Claim Construction Brief
`Deadline to file Joint Claim
`Construction Brief
`Substantial Completion of Document
`Production
`Claim Construction Hearing
`Plaintiff to serve Election of Asserted
`Claims, not to exceed a limit agreed
`upon by the parties or ordered by the
`Court
`Deadline for joinder of other parties and
`amendment of pleadings
`Deadline for completion of fact
`discovery
`Deadline for disclosure of expert
`testimony for the party who has the
`initial burden of proof on the subject
`matter
`Deadline for supplemental disclosure to
`contradict or rebut evidence on the same
`matter identified by another party
`(Responsive expert reports)
`Deadline for reply expert reports from
`the party with the initial burden of proof
`Deadline for parties to request leave of
`Court to file summary judgment
`motion(s) under Rule 56
`Deadline for completion of expert
`discovery
`Joint Proposed Final Pre-Trial Order
`Pretrial Conference
`Trial
`Expiration of 30-Month Stay
`
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`April 2, 2021
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`April 23, 2021
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`April 30, 2021
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`June 18, 2021
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`May 24, 2021
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`Within twenty-one (21) days of the Court’s order on
`claim construction, or if no claim construction is
`requested, on July 1, 2021
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`June 4, 2021
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`September 17, 2021
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`October 15, 2021
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`November 12, 2021
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`December 10, 2021
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`November 2, 2021
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`January 14, 2022
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`February 28, 2022
`March 4 2022
`March 28, 2022
`October 24, 2022
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`2
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