Case 1:22-cv-00174-RGA Document 20 Filed 05/31/22 Page 1 of 12 PageID #: 303
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`IN THE UNITED STATES DISTRICT COURT
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`DISTRICT OF DELAWARE
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`POLARIS INNOVATIONS LIMITED, an
`Ireland limited company,
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`No. 1:22-cv-00174-RGA
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`Plaintiff,
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`v.
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`XILINX, INC., a Delaware corporation,
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`Defendant.
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`SCHEDULING ORDER
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`This 31st day of May 2022, the Court having waived an initial Rule 16(b) scheduling
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`conference pursuant to Local Rule 16.1(b), and the parties having determined after discussion
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`that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(l ) Initial Disclosures. The parties shall make their initial disclosures
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`on or before July 12, 2022
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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 October 17,
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`2023.
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`3.
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`Discovery.
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`a.
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`Discovery Cut Off. All discovery in this case shall be initiated so that it
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`will be completed on or before December 18, 2023.
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`b.
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`Document Production. Document production shall be substantially
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`complete by November 17, 2023.
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`c.
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`Requests for Admission. A maximum of 35 requests for admission are
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`permitted for each side. Notwithstanding the foregoing, there shall be no limit to requests for
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`admissions related to the authenticity of documents and “things.”
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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. Each side is
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`limited to a total of 70 hours of taking testimony by deposition upon oral examination.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily
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`be required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court or by agreement of the
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`parties. A defendant who becomes a cross-claimant or third-party plaintiff shall be considered
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`as having filed an action in this Court for the purpose of this provision. The parties agree to
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`cooperate regarding the location of depositions, such that any party or representative, and
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`any third party, shall be deposed at a location where the witness resides or at another
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`mutually agreeable location, including by potential video conference.
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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 shall be e-mailed, in Word format, simultaneously with filing 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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`The parties may, if they choose, agree to a timetable for initial patent
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`disclosures either as set forth in the Delaware Default Standard for Discovery or as agreed to by
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`the parties, and the parties should set forth any such agreement in the scheduling order.
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`a. By July 12, 2022, Plaintiff shall specifically identify the accused
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`products and the asserted patents and the claims the accused products allegedly
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`infringe, and produce the file history for each asserted patent.
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`b. By August 11,2022, Defendant shall produce to Plaintiff the
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`core technical documents related to the accused products, including but not
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`limited to operation manuals, product literature, schematics, and specifications.
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`-3-
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`c. By October 10, 2022, Plaintiff shall produce to Defendant an
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`initial claim chart relating each accused product to the asserted claims each
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`product allegedly infringes.
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`d. By December 9, 2022, Defendant shall produce to Plaintiff its
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`initial invalidity contentions for each asserted claim, as well as the related
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`asserted invalidating references (e.g., publications, manuals, and patents).
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`e. Final Contentions. Parties shall produce final infringement or
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`invalidity contentions after the issuance of the Court’s Claim Construction Order.
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`1. No later than 60 days after the issuance of the Court’s
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`Claim Construction Order, Plaintiff shall produce to Defendant its final
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`claim charts relating each accused product to the asserted claims each
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`product allegedly infringe.
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`2. No later than 60 days after Plaintiff produces its Final
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`Infringement Contentions, Defendant shall produce to the Plaintiff its final
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`invalidity contentions for each asserted claims, as well as the related
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`invalidating references (e.g., publications, manuals and patents).
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`ii.
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`Related and Further Proceedings
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`Polaris’s Statement
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`Polaris previously asserted U.S. Patent 7,532,523 in the following cases:
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`a. Polaris Innovations Limited v. Etron Technology Inc., No. 3:17-cv-
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`06547, filed on November 10, 2017 in the Northern District of
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`California. This case was subsequently settled.
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`b. Polaris Innovations Limited v. Elite Semiconductor Memory
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`-4-
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`Technology Inc., No. 3:17-07157, filed on December 15, 2017 in the
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`Northern District of California. This case was subsequently settled.
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`Polaris also previously asserted U.S. Patent 6,157,589 in Polaris
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`Innovations Limited v. Kingston Technology Co. Inc., No. 8:16-cv-00300,
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`filed on February 19, 2016 in the Central District of California. Kingston
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`filed a petition for inter partes review against the ’589 patent on
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`November 10, 2016, Kingston Technology Co. Inc. v. Polaris Innovations
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`Limited, IPR2017-00238, for which the PTAB denied institution. The case
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`was subsequently settled.
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`Xilinx’s Statement
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`Xilinx presently states it may file one or more inter partes reviews related to the
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`patents-in-suit by September 2022 and may move for a stay of this action.
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`iii.
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`The parties, if they think it necessary, should set
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`times in the schedule for reducing the number of asserted claims and
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`asserted prior art used for anticipation and obviousness combinations. The
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`usual points where the Court will consider such limits are before claim
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`construction and after a ruling on claim construction.
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`iv.
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`If one or more of the patents-in-suit have already been licensed or the
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`subject of a settlement agreement, either (1) Plaintiff shall provide the licenses and/or settlement
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`agreements to Defendant no later than the time of the initial Rule 16(b) scheduling conference, or
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`(2) if Plaintiff requires a Court Order to make such disclosures, Plaintiff shall file any necessary
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`proposed orders no later than twenty-four hours before the initial Rule 16(b) scheduling
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`conference. Plaintiff shall represent in the scheduling order that it is complying or has complied
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`-5-
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`with this requirement. All parties shall be prepared to discuss at the conference what their
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`preliminary views of damages are.
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`Polaris states that it is complying with this requirement. The licenses require
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`Polaris to give notice to the licensees prior to disclosure under an appropriate protective order.
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`Polaris has begun the process of sending notice letters to the various licensees and will produce
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`the licenses as set forth in section 4 below.
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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. On or before June 14, 2022, Plaintiff
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`shall provide a proposed draft protective order to Defendant. The parties shall file a proposed
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`protective order by July 11, 2022. To the extent not previously produced, Polaris shall produce
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`any licenses or settlement agreements within 14 days after the Court’s entry of a protective order.
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`Should counsel be unable to reach an agreement on a proposed form of order, counsel must
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`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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`-6-
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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 16, 2022, 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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`On or before January 13, 2023, the parties shall supplement the list with their proposed claim
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`construction of those term(s)/phrase(s). This document will not be filed with the Court.
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`Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim
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`Construction Chart to be filed no later than January 27, 2023. The Joint Claim Construction
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`Chart, in Word format shall be e-mailed simultaneously with filing to
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`rga_civil@ded.uscourts.gov. The parties’ Joint Claim Construction Chart should identify for the
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`Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party’s proposed
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`construction of the disputed claim language with citation(s) only to the intrinsic evidence in
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`support of their respective proposed constructions. A copy of the patent(s) in issue as well as
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`those portions of the intrinsic record relied upon shall be submitted with this Joint Claim
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`Construction Chart. In this joint submission, the parties shall not provide argument.
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`8.
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`Claim Construction Briefing1 Plaintiff shall serve, but not file, its opening brief,
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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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`not to exceed 5,000 words, on February 24, 2023. Defendant shall serve, but not file, its
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`answering brief, not to exceed 7,500 words, on March 24, 2023. Plaintiff shall serve, but not file,
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`its reply brief, not to exceed 5,000 words, on April 7, 2023. Defendant shall serve, but not file its
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`sur-reply brief, not to exceed 2,500 words, on April 21, 2023. No later than May 5, 2023, the
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`parties shall file a Joint Claim Construction Brief. The parties shall copy and past their unfiled
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`briefs into one brief, with their positions on each claim term in sequential order, in substantially
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`the form below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`Representative Claims
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`II.
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`Agreed-upon Constructions
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`III.
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`Disputed Constructions
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`A.
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`[TERM 1]2
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`1.
`2.
`3.
`4.
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`B.
`1.
`2.
`3.
`4.
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`Plaintiff’s Opening Position
`Defendant’s Answering Position
`Plaintiff’s Reply Position
`Defendants Sur-Reply Position
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`[TERM 2]
`Plaintiff’s Opening Position
`Defendant’s Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
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`2 For each term in dispute, there should be a table or the like setting forth the term in dispute and the parties’
`competing constructions. The table does not count against the word limits.
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`-8-
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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 June 8, 2023, 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(cid:173) scheduled claim
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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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`February 16, 2024. 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 March 17, 2024. Reply expert reports from
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`the party with the initial burden of proof are due on or before April 16, 2024. No other expert
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`reports will be permitted without either the consent of all parties or leave of the Court.
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`If any party believes that an expert report does not comply with the rules relating to
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`timely disclosure or exceeds the scope of what is permitted in that expert report, the complaining
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`party must notify the offending party within one week of the submission of the expert report.
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`The 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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`-9-
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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
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`or before May 7, 2024.
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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 by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`11.
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`Case Dispositive Motions. All case dispositive motions shall be served and filed
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`on or before June 18, 2024. Opposition briefs will be due on July 16, 2024, and reply briefs will
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`be due on July 30, 2024. No case dispositive motion under Rule 56 may be filed more than ten
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`days before the above date without leave of the Court. Absent an order of the Court upon a
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`showing of good cause, each side is limited to one forty-page opening brief, one forty(cid:173) page
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`answering brief, and one twenty-page reply brief for all of its Daubert and case dispositive
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`motions.
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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 November 8, 2024, 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 p.m. on the
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`fourth business day before the date of the final pretrial conference. Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for the
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`preparation of the proposed joint final pretrial order.
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`14.
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`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. Any supporting
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`documents in connection with a motion in limine shall be filed in one filing separate from the
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`motion in limine. Each party shall be limited to three in limine requests, unless otherwise
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`permitted by the Court. The in limine request and any response shall contain the authorities
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`relied upon; each in Limine request may be supported by a maximum of three pages of argument
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`and may be opposed by a maximum of three pages of argument, and the party making the in
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`limine request may add a maximum of one additional page in reply in support of its request. If
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`more than one party is supporting or opposing an in limine request, such support or opposition
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`shall be combined in a single three page submission (and, if the moving party, a single one page
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`reply). No separate briefing shall be submitted on in limine requests, unless otherwise permitted
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`by the Court.
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`15.
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`Jury Instructions. Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 6 p.m. on the fourth business day before the date of the final pretrial
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`conference. Areas of dispute shall be identified as narrowly as possible and in a manner that
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`makes it readily apparent what the dispute is. The parties shall submit simultaneously with filing
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`each of the foregoing four documents in Word format to rga_civil@ded.uscourts.gov.
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`-11-
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`16.
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`Trial. This matter is scheduled for a five (5) day3 jury trial beginning at 9:30 a.m.
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`on November 18, 2024, with the subsequent trial days beginning at 9:30 a.m. Until the case is
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`submitted to the jury for deliberations, the jury will be excused each day at 5:00 p.m. The trial
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`will be timed, as counsel will be allocated a total number of hours in which to present their
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`respective cases.
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`/s/ Richard G. Andrews
`UNITED STATES DISTRICT JUDGE
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`3 Five days (i.e., about ten to thirteen hours per side) is the presumptive length of a patent jury trial. If the parties
`think it is obvious that this will not be enough, they may put in a different length and should be prepared to explain
`why at the Rule 16 conference. A final decision on the precise length of trial will not be made before the final
`pretrial conference.
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