`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ECOFACTOR, INC.,
`
`v.
`
`ECOBEE, INC.,
`
`Plaintiff,
`
`Case No. 6:21-CV-00428-ADA
`
`JURY TRIAL DEMANDED
`
`Defendant.
`
`SCHEDULING ORDER
`
`Pursuant to Rule 16, Federal Rules of Civil Procedure, the Court ORDERS that the
`
`following schedule will govern deadlines up to and including the trial of this matter:
`
`Deadline
`October 18, 2021
`
`October 18, 2021
`
`Item
`Plaintiff serves preliminary1 infringement contentions in the
`form of a chart setting forth where in the accused product(s)
`each element of the asserted claim(s) are found. Plaintiff shall
`also identify the earliest priority date (i.e. the earliest date of
`invention) for each asserted claim and produce: (1) all
`documents evidencing conception and reduction to practice for
`each claimed invention, and (2) a copy of the file history for
`each patent in suit.
`The Parties shall submit an agreed Scheduling Order. If the
`parties cannot agree, the parties shall submit a separate Joint
`Motion for entry of Scheduling Order briefly setting forth their
`respective positions on items where they cannot agree. Absent
`agreement of the parties, the Plaintiff shall be responsible for
`the timely submission of this and other Joint filings.
`
`1 The parties may amend preliminary infringement contentions and preliminary invalidity
`contentions without leave of court so long as counsel certifies that it undertook reasonable efforts
`to prepare its preliminary contentions and the amendment is based on material identified after
`those preliminary contentions were served, and should do so seasonably upon identifying any
`such material. Any amendment to add patent claims requires leave of court so that the Court can
`address any scheduling issues.
`
`1
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`ECOBEE 1022
`
`
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`Case 6:21-cv-00428-ADA Document 31 Filed 03/01/22 Page 2 of 4
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`November 16, 2021
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`November 30, 2021
`December 14, 2021
`December 21, 2021
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`January 4, 2022
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`January 11, 2022
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`February 1 , 2022
`February 15, 2022
`March 1, 2022
`March 4, 2022
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`March 4, 2022
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`March 18, 2022
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`March 19, 2022
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`April 26, 2022
`May 10, 2022
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`Defendant serves preliminary invalidity contentions in the
`form of (1) a chart setting forth where in the prior art references
`each element of the asserted claim(s) are found, (2) an
`identification of any limitations the Defendant contends are
`indefinite or lack written description under section 112, and (3)
`an identification of any claims the Defendant contends are
`directed to ineligible subject matter under section 101.
`Defendant shall also produce (1) all prior art referenced in the
`invalidity contentions, and (2) technical documents, including
`software where applicable, sufficient to show the operation of
`the accused product(s).
`Parties exchange claim terms for construction.
`Parties exchange proposed claim constructions.
`Parties disclose extrinsic evidence. The parties shall disclose
`any extrinsic evidence, including the identity of any expert
`witness they may rely upon with respect to claim construction
`or indefiniteness. With respect to any expert identified, the
`parties shall identify the scope of the topics for the witness’s
`expected testimony. 2 With respect to items of extrinsic
`evidence, the parties shall identify each such item by
`production number or produce a copy of any such item if not
`previously produced.
`Deadline to meet and confer to narrow terms in dispute and
`exchange revised list of terms/constructions.
`Defendant files Opening claim construction brief, including
`any arguments that any claim terms are indefinite.
`Plaintiff files Responsive claim construction brief.
`Defendant files Reply claim construction brief.
`Plaintiff files a Sur-Reply claim construction brief.
`Parties submit Joint Claim Construction Statement.
`
`See General Issues Note #9 regarding providing copies of the
`briefing to the Court and the technical adviser (if appointed).
`Parties submit optional technical tutorials to the Court and
`technical adviser (if appointed).
`Markman Hearing at 10:30 a.m. This date is a placeholder and
`the Court may adjust this date as the Markman hearing
`approaches.
`Fact Discovery opens; deadline to serve Initial Disclosures
`per Rule 26(a).
`Deadline to add parties.
`Deadline to serve Final Infringement and Invalidity
`Contentions. After this date, leave of Court is required for any
`
`2 Any party may utilize a rebuttal expert in response to a brief where expert testimony is relied
`upon by the other party.
`
`2
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`
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`Case 6:21-cv-00428-ADA Document 31 Filed 03/01/22 Page 3 of 4
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`July 5, 2022
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`September 13, 2022
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`October 11, 2022
`October 18, 2022
`November 15, 2022
`December 6 , 2022
`December 13, 2022
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`December 20, 2022
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`January 10, 2023
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`January 24, 2023
`January 31, 2023
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`February 7, 2023
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`February 14, 2023
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`amendment to infringement or invalidity contentions. This
`deadline does not relieve the parties of their obligation to
`seasonably amend if new information is identified after initial
`contentions.
`Deadline to amend pleadings. A motion is not required unless
`the amendment adds patents or patent claims. (Note: This
`includes amendments in response to a 12(c) motion.).
`Deadline for the first of two meet and confers to discuss
`significantly narrowing the number of claims asserted and
`prior art references at issue. Unless the parties agree to the
`narrowing, they are ordered to contact the Court’s Law Clerk
`to arrange a teleconference with the Court to resolve the
`disputed issues.
`Close of Fact Discovery.
`Opening Expert Reports.
`Rebuttal Expert Reports.
`Close of Expert Discovery.
`Deadline for the second of two meet and confers to discuss
`narrowing the number of claims asserted and prior art
`references at issue to triable limits. To the extent it helps the
`parties determine these limits, the parties are encouraged to
`contact the Court’s Law Clerk for an estimate of the amount
`of trial time anticipated per side. The parties shall file a Joint
`Report within 5 business days regarding the results of the
`meet and confer.
`Dispositive motion deadline and Daubert motion deadline.
`See General Issues Note #9 regarding providing copies of the
`briefing to the Court and the technical adviser (if appointed).
`Serve Pretrial Disclosures (jury instructions, exhibits lists,
`witness lists, discovery and deposition designations).
`Serve objections to pretrial disclosures/rebuttal disclosures.
`Serve objections to rebuttal disclosures; file Motions in
`limine.
`File Joint Pretrial Order and Pretrial Submissions (jury
`instructions, exhibits lists, witness lists, discovery and
`deposition designations); file oppositions to motions in
`limine.
`File Notice of Request for Daily Transcript or Real Time
`Reporting. If a daily transcript or real time reporting of court
`proceedings is requested for trial, the party or parties making
`said request shall file a notice with the Court and e-mail the
`Court Reporter, Kristie Davis at kmdaviscsr@yahoo.com
`
`Deadline to meet and confer regarding remaining objections
`and disputes on motions in limine.
`
`3
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`
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`Case 6:21-cv-00428-ADA Document 31 Filed 03/01/22 Page 4 of 4
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`January 24, 2023
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`February 23, 2023
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`February 28, 2023
`March 21, 20233
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`Parties email the Court’s law clerk to confirm pretrial and
`trial dates.
`File joint notice identifying remaining objections to pretrial
`disclosures and disputes on motions in limine.
`Final Pretrial Conference.
`Jury Selection/Trial.
`
`SIGNED this 1st day of March, 2022.
`
`3 If the actual trial date materially differs from the Court’s default schedule, the Court will
`consider reasonable amendments to the case schedule post-Markman that are consistent with the
`Court’s default deadlines in light of the actual trial date.
`
`4
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`