Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 1 of 20 PageID #: 1541
`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 1 of 20 PagelD #: 1541
`
`IN THE UNITED STATESDISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`IMMERVISION,INC.,
`
`Plaintiff,
`
`V.
`
`APPLE,INC.
`
`Defendant.
`
`IMMERVISION,INC.,
`
`Plaintiff,
`
`V.
`
`APPLE,INC.
`
`Defendant.
`
`IMMERVISION,INC.,
`
`Plaintiff,
`
`v.
`
`APPLE, INC.
`
`Defendant.
`
`C.A. No. 21-1484-MN-CJB
`
`C.A. No. 21-1570-MN-CJB
`
`C.A. No. 21-1733-MN-CJB
`
`iiaeeee,ee,
`
`JOINT PROPOSED SCHEDULING ORDER
`
`This 21st day of June
`
`, 2022, the Court having conducted an initial Rule 16
`
`scheduling and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local
`
`Rule 16.1 on
`
`N/A
`
`, 2022, and the parties having determinedafter discussion that the
`
`matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
`
`arbitration;
`
`1
`
`APPLE 1022
`
`1
`
`APPLE 1022
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 2 of 20 PageID #: 1542
`
`IT IS ORDERED that:
`
`
`
`
`
`1. The above-captioned actions shall be consolidated for discovery and all purposes
`
`
`
`
`
`
`
`up to, but not including, trial. Such consolidation is made without prejudice to, and without waiver
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`of, any party's position regarding whether or not the cases should be tried separately. Such
`
`
`
`
`
`
`
`consolidation is also made without prejudice to, and without waiver of, any party's position
`
`
`
`
`
`
`
`
`
`
`
`
`
`regarding whether or not one or all cases should be stayed if Inter Partes Review is instituted on
`
`
`
`
`
`
`
`
`
`
`
`one or more claims of any of the Asserted Patents.
`
`
`
`Unless
`2. Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Federal Rule of Civil Procedure 26(a)(l) within thirty (30) days after the Rule 16 Conference. If
`
`
`
`
`
`
`
`they have not already done so, the parties are to review the Court's Default Standard for Discovery,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Including Discovery of Electronically Stored Information ("ESI"), which is posted on Magistrate
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Judge Burke's section of the Court's website (https://www.ded.uscourts.gov/judge/magistrate­
`
`
`
`
`
`
`
`
`
`judge-christopher-j-burke) under the "Guidelines" tab, and is incorporated herein by reference.
`
`
`
`
`
`
`
`Within thirty (30) days after the Rule 16 Conference, counsel should concern and attempt to reach
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`an agreement on a proposed form of order regarding discovery including discovery of
`
`
`
`
`
`electronically stored information. Should counsel be unable to reach an agreement on a proposed
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`form of order, the Court's Default Standard for Discovery, Including Discovery of Electronically
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Stored Information incorporated herein by reference will apply to this matter.
`
`
`
`
`
`
`
`
`3. Joinder of Other Parties and Amendment of Pleadings.
`
`All motions to join other
`
`
`
`
`
`parties, and to amend or supplement the pleadings shall be filed on or before May 22, 2023.
`
`
`
`
`
`
`
`find it will be4. Application to Court for Protective Order. Should counsel
`
`
`
`
`
`
`
`
`
`
`
`
`
`necessary to apply to the Court for a protective order specifying terms and conditions for the
`
`2
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 3 of 20 PageID #: 1543
`
`
`
`disclosure of confidential information, counsel should confer and attempt to reach an agreement
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`on a proposed form of order and file it with the Court within thirty (30) days from the date of this
`
`
`
`
`
`
`
`Order. Should counsel be unable to reach an agreement on a proposed form of order, counsel must
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`follow the provisions of Paragraph 7(g) below.
`
`
`
`Any proposed protective order must include the following paragraph:
`
`
`
`
`
`
`
`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 "confidential" [the parties should list
`
`
`
`any other level of designation, such as "highly confidential," which
`
`
`
`
`may be provided for in the protective order] 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.
`
`
`5. Papers Filed Under Seal
`
`
`
`When filing papers under seal, counsel shall follow the
`
`
`
`District Court's policy on Filing Sealed Civil Documents in CM/ECF and section G of the
`
`
`
`
`
`
`
`
`
`
`
`
`
`Administrative Procedures Governing Filing and Service by Electronic Means. A redacted version
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`of any sealed document shall be filed electronically within seven (7) days of the filing of the sealed
`
`
`
`
`
`document.
`
`
`
`Should any party intend to request to seal or redact all or any portion of a transcript of a
`
`
`
`
`
`
`
`
`
`
`
`court proceeding (including a teleconference), such party should expressly note that intent at the
`
`
`
`
`
`
`
`
`
`
`
`
`
`start of the court proceeding. Should the party subsequently choose to make a request for sealing
`
`
`
`
`
`
`
`
`
`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
`
`
`
`
`
`
`
`
`
`
`
`for sealing/redaction, and include as attachments: (1) a copy of the complete transcript highlighted
`
`
`
`
`
`
`
`
`
`
`
`so the Court can easily identify and read the text proposed to be sealed/redacted; and (2) a copy of
`
`
`
`
`
`
`
`
`
`the proposed redacted/sealed transcript. With its request, the party seeking redactions must
`
`
`
`
`
`
`
`
`
`3
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 4 of 20 PageID #: 1544
`
`
`
`
`
`demonstrate why there is good cause for the redactions and why disclosure of the redacted material
`
`
`
`
`
`
`
`would work a clearly defined and serious injury to the party seeking redaction.
`
`
`
`
`
`
`
`
`
`copies ofto the Court two (2) courtesy shall provide 6. Courtesy The parties Copies.
`
`
`
`
`
`
`
`
`
`
`
`
`all briefs and any other document filed in support of any briefs (i.e., appendices, exhibits,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`declarations, affidavits, etc.). This provision also applies to papers filed under seal. Unless ordered
`
`
`
`
`
`
`
`differently by the Court, such copies must be provided to the Court by no later than noon the
`
`
`
`
`
`
`
`
`
`business day after the filing is made electronically.
`
`
`
`
`
`
`
`
`
`of the Court:and approval 7. Disclosures. Absent agreement among the parties,
`
`
`
`a. If one or more of the patents-in-suit have already been licensed or the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`subject of a settlement agreement, either: ( 1) Plaintiff shall provide the licenses and/or settlement
`
`
`
`
`
`
`
`
`
`agreements to Defendant no later than August 15, 2022, or (2) if Plaintiff requires a Court Order
`
`
`
`
`
`
`
`
`
`to make such disclosures, Plaintiff shall file any necessary proposed orders no later than August
`
`
`
`
`
`
`
`15, 2022. Plaintiff hereby represents that it is complying or has complied with this requirement.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`b. By August 15, 2022, Plaintiff shall identify the accused product(s),
`
`
`
`
`
`
`
`including accused methods and systems, and its damages model, as well as the asserted patent(s)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for
`
`
`
`
`
`
`
`
`
`
`
`
`
`each asserted patent.
`
`
`
`
`
`
`
`
`
`c. By September 30, 2022, Defendant shall produce core technical documents
`
`
`
`
`
`
`
`related to the accused product(s), sufficient to show how the accused product(s) work(s), including
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`but not limited to non-publicly available operation manuals, product literature, schematics, and
`
`
`
`
`
`
`
`specifications. Defendant shall produce sales figures for the accused product(s).
`
`
`
`
`
`
`
`
`
`
`
`d. By November 1, 2022, Plaintiff shall produce an initial claim chart relating
`
`
`
`
`
`
`
`each known accused product to the asserted claims each such product allegedly infringes.
`
`
`
`
`
`
`
`
`
`4
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 5 of 20 PageID #: 1545
`
`
`
`e. By December 8, 2022, Defendant shall produce its initial invalidity
`
`
`
`
`
`
`
`
`
`contentions for each asserted claim, as well as the known related invalidating references.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`f. By September 25, 2023, or 30 days after the Court issues a claim
`
`
`
`construction ruling, whichever is later, Plaintiff shall provide final infringement contentions.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`g. By October 25, 2023, or 60 days after the Court issues a claim construction
`
`
`
`
`
`
`
`ruling, whichever is later, Defendant shall provide final invalidity contentions
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`h. Within 30 days of the Court's claim construction order, Plaintiff shall
`
`
`
`reduce the number of asserted claims to a triable limit. Within 30 days of receiving Plaintiff's
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`reduced set of claims, Defendant shall reduce the number of prior art references at issue to a triable
`
`
`
`
`
`
`
`
`
`
`
`limit. Should the parties disagree on the appropriate limits, after making good-faith efforts to
`
`
`
`
`
`
`
`
`
`
`
`
`
`resolve their differences, they shall jointly raise the issue with the Court.
`
`
`
`
`
`
`
`8. Discovery. Unless otherwise ordered by the Court, the limitations on discovery set
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`forth in Local Rule 26.1 shall be strictly observed.
`
`
`
`
`
`a. Discovery Cut Off. All fact discovery in this case shall be initiated so that
`
`
`
`
`
`it will be completed on or before December 15, 2023.
`
`
`
`b.
`
`
`
`Document Production. Document production shall be substantially
`
`
`
`
`
`
`
`
`
`complete by March 31, 2023.
`
`
`
`c. Requests for Admission. Apart from requests relating to the authenticity of
`
`
`
`
`
`
`
`
`
`
`
`documents produced in the case, a maximum of thirty (30) requests for admission are permitted
`
`
`
`
`
`
`
`
`
`
`
`for each side.
`
`d.
`
`Interrogatories.
`
`
`
`
`
`1. A maximum of twenty-five (25) interrogatories, including
`
`
`
`
`
`
`
`contention interrogatories, are permitted for each side.
`
`5
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 6 of 20 PageID #: 1546
`
`
`
`11. The Court encourages the parties to serve and respond to contention
`
`
`
`
`
`
`
`interrogatories early in the case. In the absence of agreement among the parties, contention
`
`
`
`
`
`
`
`
`
`
`
`interrogatories, if served, shall first be addressed by the party with the burden of proof. The
`
`
`
`
`
`adequacy of all interrogatory answers shall, in part, be judged by the level of detail each party
`
`
`
`
`
`
`
`
`
`
`
`provides; i.e., the more detail a party provides, the more detail a party shall receive.
`
`
`
`
`
`
`
`
`
`e. Depositions.
`
`
`
`
`
`
`
`
`
`1. Limitation on Hours for Deposition Discovery. Deposition upon
`
`
`
`oral examination, including that of any third-party witnesses but excluding that of each party's
`
`
`
`
`
`
`
`
`
`
`
`experts, shall be governed by the limits set forth in Rule 30 of the Federal Rules of Civil Procedure.
`
`
`
`
`
`
`
`
`
`
`
`11. Location of Depositions. Any party or representative ( officer,
`
`
`
`
`
`director, or managing agent) of a party filing a civil action in this Court must ordinarily be required,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`upon request, to submit to a deposition at a place designated within this district. Exceptions to this
`
`
`
`
`
`
`
`
`
`general rule may be made by order of the Court. A defendant who becomes a counterclaimant,
`
`
`
`
`
`
`
`
`
`cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court
`
`
`
`
`
`
`
`
`
`
`
`
`
`for the purpose of this provision. In light of the on-going COVID-19 pandemic and unless
`
`
`
`
`
`
`
`
`
`
`
`otherwise agreed-to by the parties, the parties agree to conduct all depositions remotely.
`
`
`
`
`
`
`
`
`
`
`
`f.
`
`
`
`
`
`Disclosure of Expert Testimony.
`
`
`
`
`
`
`
`1. Expert Reports. For the party who has the initial burden of proof on
`
`
`
`the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`before January 26, 2024. The supplemental disclosure to contradict or rebut evidence on the same
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`matter identified by another party is due on or before February 26, 2024. Reply expert reports from
`
`
`
`
`
`
`
`
`
`
`
`the party with the initial burden of proof are due on or before March 26, 2024. No other expert
`
`
`
`
`
`reports will be permitted without either the consent of all parties or leave of the Court. Along with
`
`
`
`
`
`
`
`
`
`
`
`
`
`6
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 7 of 20 PageID #: 1547
`
`
`
`
`
`
`
`
`
`
`
`the submissions of the expert reports, the parties shall advise of the dates and times of their experts'
`
`
`
`
`
`
`
`
`
`availability for deposition, which shall be completed by April 26, 2024.
`
`
`
`
`
`11. Expert Report Supplementation. The parties agree they will not
`
`
`
`permit expert declarations to be filed m connection with motions briefing (including case­
`
`
`
`
`
`
`
`
`
`
`
`dispositive motions).
`
`
`
`
`
`111.Objections to Expert Testimony.
`
`
`
`
`
`
`
`
`
`To the extent any objection to expert testimony is made pursuant to the
`
`
`
`
`
`
`
`
`
`
`
`principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as
`
`
`
`
`
`incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than the deadline
`
`
`
`
`
`
`
`
`
`
`
`for dispositive motions set forth herein, unless otherwise ordered by the Court. Briefing on such
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`motions is subject to the page limits set out in connection with briefing of case dispositive motions.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Orders.Relating to Protective g. Discovery Matters and Disputes
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1. Any discovery motion filed without first complying with the
`
`
`
`following procedures will be denied without prejudice to renew pursuant to these procedures.
`
`
`
`
`
`
`
`
`
`
`
`
`
`11. Should counsel find, after good faith efforts including verbal
`
`
`
`
`
`communication among Delaware and Lead Counsel for all parties to the dispute that they are
`
`
`
`
`
`
`
`
`
`
`
`unable to resolve a discovery matter or a dispute regarding a protective order ( other than that
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`involving the initial drafting of a protective order, which is discussed further below), the parties
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`involved in the discovery matter or protective order dispute shall file a joint letter in substantially
`
`
`
`
`
`
`
`the following form:
`
`Dear Judge Burke:
`
`The parties in the above-referenced matter write to
`
`
`
`
`
`
`
`request the scheduling of a discovery teleconference.
`
`The following attorneys, including at least one
`
`
`
`
`Delaware Counsel and at least one Lead Counsel per
`
`7
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 8 of 20 PageID #: 1548
`
`party, participated in a verbal meet-and-confer (in
`
`
`
`
`
`
`
`
`
`person and/or by telephone) on the following date( s ):
`
`
`
`Delaware Counsel:
`
`Lead Counsel:
`
`
`
`
`
`The disputes requiring judicial attention are listed
`
`
`
`below:
`
`[provide here a non-argumentative list of disputes
`
`
`
`
`requiring judicial attention]
`
`
`
`
`
`111.The moving party (i.e., the party seeking relief from the Court)
`
`
`
`
`
`
`
`
`
`should also file a "Motion For Teleconference To Resolve Discovery Dispute." The suggested text
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`for this motion can be found in Judge Burke's section of the Court's website, in the "Forms" tab,
`
`
`
`
`
`
`
`
`
`
`
`
`
`under the heading "Discovery Matters -Motion to Resolve Discovery Dispute."
`
`
`
`
`
`1v. The Court will thereafter set a discovery dispute telephone
`
`
`
`
`
`conference and a briefing schedule. The movant's opening letter brief shall include as attachments:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(1)a proposed order, attached as an exhibit, setting out the nature of the relief requested of the
`
`
`
`
`
`
`
`Court; and (2) to the extent that the dispute relates to responses to certain discovery requests, an
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`attached exhibit ( or exhibits) containing the requests and the responses in dispute. To the extent
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`that factual issues are disputed or are otherwise central to the Court's analysis, the parties shall
`
`
`
`
`
`
`
`
`
`attach as an exhibit ( or exhibits) to their letter briefs sworn declarations or affidavits regarding
`
`
`
`
`
`
`
`
`
`
`
`
`
`those issues. The parties should also consult and follow Judge Burke's "Guidelines for Discovery
`
`
`
`
`
`
`
`
`
`
`
`
`
`Disputes," which is found in the "Guidelines" tab on Judge Burke's section of the District Court's
`
`
`
`
`
`
`
`
`
`
`
`website. The parties shall also comply with paragraph 5 regarding the submission of courtesy
`
`
`
`
`
`
`
`
`
`
`
`copies; if they fail to do so, the telephone conference may be cancelled.
`
`
`
`
`
`8
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 9 of 20 PageID #: 1549
`
`
`
`v. Should the Court find further briefing necessary upon the conclusion
`
`
`
`
`
`
`
`
`
`
`
`of the telephone conference, the Court will order it. Alternatively, the Court may choose to resolve
`
`
`
`
`
`
`
`
`
`the dispute prior to the telephone conference and will, in that event, cancel the conference.
`
`
`
`
`
`
`
`
`
`
`
`
`
`v1. Should counsel find, after good faith efforts including verbal
`
`
`
`communication among Delaware and Lead Counsel for all parties to the dispute that they are
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`unable to resolve a dispute regarding the initial drafting of a protective order, the parties involved
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`in the dispute shall file a joint letter in substantially the following form:
`
`Dear Judge Burke:
`
`The parties in the above-referenced matter write to
`
`
`
`
`
`
`request the scheduling of a
`
`
`
`teleconference to resolve a protective order dispute.
`
`
`
`
`
`The following attorneys, including at least one
`
`
`
`
`
`
`
`Delaware Counsel and at least one Lead Counsel per
`
`
`
`
`party, participated in a verbal meet-and-confer (in
`
`
`
`
`person and/or by telephone) on the following date( s ):
`
`
`
`Delaware Counsel:
`
`Lead Counsel:
`
`
`
`
`
`The disputes requiring judicial attention are listed
`
`
`
`below:
`
`[provide here a non-argumentative list of disputes
`
`
`
`
`requiring judicial attention]
`
`
`
`
`
`v11. The parties shall also file a "Joint Motion For Teleconference To
`
`
`
`
`
`
`
`Resolve Protective Order Dispute." The suggested text for this motion can be found in Judge
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Burke's section of the Court's website, in the "Forms" tab, under the heading "Discovery Matters
`
`
`
`
`
`
`
`
`
`-Joint Motion to Resolve Protective Order Dispute."
`
`
`
`v111. The Court will thereafter set a protective order dispute
`
`
`
`
`
`
`
`
`
`teleconference and a briefing schedule. Along with their respective letter briefs, each side should
`
`
`
`
`
`
`
`9
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 10 of 20 PageID #: 1550
`
`
`
`
`
`
`
`
`
`
`
`
`
`include as an attachment the side's proposal as to how the content of the disputed portion(s) of the
`
`
`
`
`
`
`
`
`
`protective order should read. The parties shall also comply with paragraph 5 regarding the
`
`
`
`
`
`
`
`
`
`submission of courtesy copies; if they fail to do so, the telephone conference may be cancelled.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1x. Should the Court find further briefing necessary upon the conclusion
`
`
`
`
`
`of the telephone conference, the Court will order it. Alternatively, the Court may choose to resolve
`
`
`
`
`
`
`
`
`
`
`
`the dispute prior to the telephone conference and will, in that event, cancel the conference.
`
`
`
`
`
`
`
`9. Motions to Amend.
`
`
`
`a. Any motion to amend a pleading shall NOT be accompanied by an opening
`
`
`
`
`
`brief but shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages,
`
`
`
`
`
`
`
`
`
`
`
`describing the basis for the requested relief, and shall attach the proposed amended pleading as
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`well as a "blackline" comparison to the prior pleading.
`
`b.
`
`
`
`
`
`Within seven (7) days after the filing of a motion in compliance with this
`
`
`
`
`
`
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single­
`
`
`
`
`
`
`
`
`
`
`
`spaced pages.
`
`
`
`c. Within three (3) days thereafter, the moving party may file a reply letter,
`
`
`
`
`
`
`
`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
`
`
`
`requesting a teleconference to address the motion to amend.
`
`
`
`
`
`10.Motions to Strike.
`
`
`
`
`
`
`
`
`
`a. Any motion to strike any pleading or other document or testimony shall
`
`
`
`
`
`NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not to
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`exceed three (3) single-spaced pages, describing the basis for the requested relief, and shall attach
`
`
`
`the document to be stricken.
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 11 of 20 PageID #: 1551
`
`b.
`
`
`
`
`
`Within seven (7) days after the filing of a motion in compliance with this
`
`
`
`
`
`
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single­
`
`
`
`
`
`
`
`
`
`spaced pages.
`
`
`
`c. Within three (3) days thereafter, the moving party may file a reply letter,
`
`
`
`
`
`
`
`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
`
`
`
`requesting a teleconference to address the motion to strike.
`
`
`
`
`
`11.Motions to Stay.
`
`
`
`
`
`a. Any motion to stay shall NOT be accompanied by an opening brief but
`
`
`
`
`
`shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages, describing
`
`
`
`
`
`
`
`
`
`
`
`the basis for the requested relief.
`
`b.
`
`
`
`
`
`Within seven (7) days after the filing of a motion in compliance with this
`
`
`
`
`
`
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single­
`
`
`
`
`
`
`
`
`
`spaced pages.
`
`c. Within three (3) days thereafter, the moving party may file a reply letter,
`
`
`
`
`
`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
`
`
`
`
`
`
`
`requesting a teleconference to address the motion to stay.
`
`
`
`
`
`
`The parties may
`12.Tutorial Describing the Technology and Matters in Issue.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`( though they are not required to) provide the Court, no later than the date on which the Joint Claim
`
`
`
`
`
`Construction Brief is due, with a tutorial on the technology at issue. In this regard, the parties may
`
`
`
`
`
`
`
`
`
`
`
`separately submit a DVD/flash drive containing a tutorial that is not more than 30 minutes in
`
`
`
`
`
`
`
`
`
`
`
`
`
`length. The tutorial should focus on the technology at issue and should not be used to argue claim
`
`
`
`
`
`
`
`
`
`
`
`
`
`construction contentions. The parties may choose to file their tutorial(s) under seal, subject to any
`
`
`
`
`
`
`
`
`
`protective order in effect. Each party may comment, in writing (in no more than 5 pages) on the
`
`
`
`
`
`
`
`
`
`11
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 12 of 20 PageID #: 1552
`
`
`
`opposing party's tutorial. Any such comment shall be filed no later than seven (7) days after the
`
`
`
`
`
`
`
`
`
`Joint Claim Construction Brief is due. As to the format selected, the parties should confirm the
`
`
`
`
`
`
`
`
`
`Court's technical abilities to access the information contained in the tutorial.
`
`
`
`
`
`
`
`
`
`
`
`
`
`13.Claim Construction Issue Identification. On December 22, 2022, the parties shall
`
`
`
`
`
`
`
`exchange a list of those claim term( s )/phrase( s) that they believe need construction and their
`
`
`
`
`
`
`
`
`
`
`
`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim
`
`
`
`
`
`
`
`Construction Chart to be filed with the Court on February 15, 2023. The Joint Claim Construction
`
`
`
`
`
`Chart, m Word format, shall be e-mailed simultaneously with filing to
`
`
`
`
`
`
`
`Deborah_Benyo@ded.uscourts.gov. The parties' Joint Claim Construction Chart should identify
`
`
`
`
`
`
`
`for the Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party's
`
`
`
`
`
`
`
`
`
`proposed construction of the disputed claim language with citation(s) only to the intrinsic evidence
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`in support of their respective proposed constructions. A copy of the patent( s) at issue as well as
`
`
`
`those portions of the intrinsic record relied upon shall be submitted with this Joint Claim
`
`
`
`
`
`
`
`
`
`
`
`Construction Chart. In this joint submission, the parties shall not provide argument. Each party
`
`
`
`
`
`
`
`
`
`
`
`shall file concurrently with the Joint Claim Construction Chart a "Motion for Claim Construction"
`
`
`
`
`
`
`
`that requests the Court to adopt the claim construction position( s) of that party set forth in the Joint
`
`
`
`
`
`
`
`
`
`
`
`
`
`Claim Construction Chart. The motion shall not contain any argument and shall simply state that
`
`
`
`
`
`
`
`
`
`the party "requests that the Court adopt the claim construction position[ s] of [the party] set forth
`
`
`
`
`
`
`
`
`
`
`
`in the Joint Claim Construction Chart (D.I. [ ])."
`
`
`14. Claim Construction Briefing.
`
`
`
`
`
`Plaintiff shall serve, but not file, its opening
`
`
`
`brief, not to exceed 20 pages, on claim construction on or before March 15, 2023. Defendant shall
`
`
`
`
`
`
`
`
`
`serve, but not file, its answering claim construction brief, not to exceed 30 pages, on or before
`
`
`
`
`
`
`
`
`
`
`
`12
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 13 of 20 PageID #: 1553
`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 13 of 20 PagelD #: 1553
`
`April 17, 2023. Plaintiffshall serve, but notfile, its reply brief, not to exceed 20 pages, on or before
`
`May1, 2023. Defendantshall serve, but notfile, its sur- reply brief, not to exceed 10 pages, on or
`
`before May 15, 2023. No later than June 2, 2023, the parties shall file a Joint Claim Construction
`
`Brief. The parties shall copy and paste their unfiled briefs into one brief, with their positions on
`
`each claim term in sequential order, in substantially the form below:
`
`I.
`
`II.
`
`FYNHDWFYwYNYDp
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`[TERM 1]
`Plaintiff's Opening Position
`Defendant’s Answering Position
`Plaintiff's Reply Position
`Defendant’s Sur-Reply Position
`
`[TERM 2]
`Plaintiff's Opening Position
`Defendant’s Answering Position
`Plaintiff's Reply Position
`Defendant’s Sur-Reply Position
`
`The parties need not include any general summaries of the law relating to claim construction. If
`
`there are any materials that would be submitted in an appendix,the parties shall file them in a joint
`
`appendix.
`
`15.
`
`Hearing on Claim Construction. Beginning at 11:00 a.m. on July 27, 2023, the
`
`Court will hear argument on claim construction. The parties shall notify the Court, by jointletter
`
`submission,nolater than the date on which the Joint Claim Construction Briefis due: (i) whether
`
`they request leave to present testimony at the hearing;(ii) the amount of time they are requesting
`
`be allocated to them for the hearing; and(iii) the order in which they intend to present the claim
`
`terms at issue, including which side will present first for each term. Provided that the parties
`
`comply with all portions of this Scheduling Order, and any other orders of the Court, the Court
`
`13
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 14 of 20 PageID #: 1554
`
`
`
`will endeavor to issue its claim construction order within sixty ( 60) days of the conclusion of the
`
`
`
`
`
`
`
`
`
`
`
`claim construction hearing.
`
`
`
`
`
`On August 7, 2023, counsel shall file a joint letter with the
`
`
`
`16.Interim Status Report.
`
`
`
`
`
`
`
`Court with an interim report on the nature of the matters in issue and the progress of discovery to
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`date. Thereafter, if the Court deems it necessary, it will schedule a status conference.
`
`
`
`
`
`17.Supplementation.
`
`
`
`
`
`Absent agreement among the parties, and approval of the Court,
`
`
`
`
`
`
`
`
`
`
`
`no later than August 24, 2023, the parties must finally supplement, inter alia, the identification of
`
`
`
`
`
`
`
`all accused products and of all invalidity references.
`
`
`
`
`
`
`
`18.Case Dispositive Motions.
`
`
`
`
`
`
`
`
`
`a. All case dispositive motions, an opening brief, and affidavits, if any, in
`
`
`
`
`
`
`
`
`
`support of the motion shall be served and filed on or before May 31, 2024. Briefing will be
`
`
`
`presented pursuant to the Court's Local Rules. No case dispositive motion under Rule 56 may
`
`
`
`
`
`
`
`
`
`
`
`be filed more than ten (10) days before the above date without leave of the Court.
`
`
`
`
`
`
`
`
`
`b. Concise Statement of Facts Requirement. Any motion for summary
`
`
`
`judgment shall be accompanied by a separate concise statement, not to exceed six ( 6) pages, which
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`details each material fact which the moving party contends is essential for the Court's resolution
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`of the summary judgment motion (not the entire case) and as to which the moving party contends
`
`
`
`
`
`
`
`there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered paragraph
`
`
`
`
`
`
`
`
`
`and shall be supported by specific citation(s) to the record.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Any party opposing the motion shall include with its opposing papers a response
`
`
`
`
`
`
`
`
`
`
`
`to the moving party's concise statement, not to exceed six (6) pages, which admits or disputes
`
`
`
`
`
`
`
`
`
`
`
`the facts set forth in the moving party's concise statement on a paragraph-by-paragraph basis.
`
`
`
`
`
`
`
`
`
`To the extent a fact is disputed, the basis of the dispute shall be supported by specific citation(s)
`
`
`
`
`
`
`
`
`
`14
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 15 of 20 PageID #: 1555
`
`
`
`
`
`
`
`
`
`
`
`
`
`to the record. Failure to respond to a fact presented in the moving party's concise statement of
`
`
`
`
`
`
`
`facts shall indicate that fact is not in dispute for purposes of summary judgment. The party
`
`
`
`
`
`
`
`
`
`
`
`
`
`opposing the motion may also include with its opposing papers a separate concise statement, not
`
`
`
`
`
`
`
`
`
`
`
`
`
`to exceed four ( 4) pages, which sets forth material facts as to which the opposing party contends
`
`
`
`
`
`
`
`there is a genuine issue to be tried. Each fact asserted by the opposing party shall also be set
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`forth in a separate numbered paragraph and shall be supported by specific citation(s) to the
`
`
`
`record.
`
`
`
`The moving party shall include with its reply papers a response to the opposing party's
`
`
`
`
`
`
`
`
`
`
`
`
`
`concise statement of facts, not to exceed four (4) pages, on a paragraph-by-paragraph basis.
`
`
`
`
`
`
`
`
`
`Failure to respond to a fact presented in the opposing party's concise statement of facts shall
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`indicate that fact remains in dispute for purposes of summary judgment.
`
`
`
`c. Page limits combined with Daubert motion page limits. Each party is
`
`
`
`
`
`
`
`
`
`
`
`permitted to file as many case dispositive motions as desired provided, however, that each SIDE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40 pages
`
`
`
`
`
`
`
`for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of the
`
`
`
`
`
`
`
`
`
`number of case dispositive motions that are filed. In the event that a party files, in addition to a
`
`
`
`
`
`
`
`case dispositive motion, a Daubert motion to exclude or preclude all or any portion of an expert's
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`testimony, the total amount of pages permitted for all case dispositive and Daubert motions shall
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`be increased to 50 pages for all opening briefs, 50 pages for all answering briefs, and 25 pages for
`
`all reply briefs for each SIDE.1
`
`1 The parties must work together to ensure that the Court receives no more than a total of 250
`
`
`
`
`
`
`
`
`
`
`pages (i.e., 50 + 50 + 25 regarding one side's motions, and 50 + 50 + 25 regarding the other
`
`
`
`
`
`
`
`side's motions) of briefing on all case dispositive motions and Daubert motions that are covered
`
`
`
`
`by this scheduling order and any other scheduling order entered in any related case that is
`
`
`
`
`proceeding on a consolidated or coordinated pretrial schedule.
`
`15
`
`

`

`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 16 of 20 PageID #: 1556
`Case 1:21-cv-01733-MN-CJB Document 41 Filed 06/21/22 Page 16 of 20 PagelD #: 1556
`
`19.
`
`Applications by Motion. Except as otherwise specified herein, any application to
`
`the Court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7.1.1.
`
`20. Motions in Limine. Motions in Limine shall not be separately filed. All in /imine
`
`requests and responsesthereto shall be set forth in the proposed pretrial order. Each SIDE shall
`
`be limited to six (6) in /imine requests, unless otherwise permitted by the Court. The in /imine
`
`request and any response shall contain the authorities relied upon; each in /imine request may
`
`be supported by a maximumofthree (3) pages of argument, may be opposed by a maximum of
`
`three (3) pages of argument, and the side making the in /imine request may add a maximum of
`
`one (1) additional page in reply in support ofits request. If more than one party is supporting or
`
`opposing an in /imine request, such support or opposition shall be com