Case 1:23-cv-00239-KAJ Document 54 Filed 09/19/23 Page 1 of 14 PageID #: 2656
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
`ABBOTT DIABETES CARE INC. and
`)
`ABBOTT DIABETES CARE LIMITED,
`)
`)
`Plaintiffs,
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`) C.A. No. 23-239 (KAJ)
`)
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`V.
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`DEXCOM, INC.,
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`Defendant.
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`)
`)
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`SCHEDULING ORDER
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`This /�y of /4.r-, , 2023, the Court having conducted an initial Rule 16
`scheduling and planning conference pursuant to Local Rule 16.2(a), and the parties having
`determined after discussion that the matter cannot be resolved at this juncture by settlement,
`voluntary mediation, or binding arbitration;
`IT rs ORDERED that:
`1.
`Except with respect to the hearings on claim construction and dispositive and
`Daubert motions, the pretrial orders and pretrial conferences, and the trials themselves,
`proceedings on the parties' claims, defenses and counterclaims with respect to the patents asserted
`by Plaintiffs Abbott Diabetes Care Inc. and Abbott Diabetes Care Limited 1 against Defendant
`DexCom, Inc. in their Complaint (D.I. 1) shall be consolidated with, and follow the same schedule
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`Plaintiffs Abbott Diabetes Care Inc. and Abbott Diabetes Care Limited, and Counterclaim
`Defendant Abbott Diabetes Care Sales Corp. are referred to collectively as "Abbott." Defendant
`and Counterclaim Plaintiff Dex Com, Inc. is referred to as "Dex Com."
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`

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`Case 1:23-cv-00239-KAJ Document 54 Filed 09/19/23 Page 2 of 14 PageID #: 2657
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`as, the parties' claims, defenses and counterclaims with respect to the patents asserted by Dex Com
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`in its Counterclaims (D.1. 15).
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard. Unless
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`2.
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(l) within 14 days of the date of this Order. If they have not
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`already done so, the parties are to review the Court's Default Standard for Discovery, which is
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`posted at http://www.ded.uscourts.gov, and is incorporated herein by reference.
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`3.
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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 August 28, 2024.
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`4.
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`Discovery.
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`a.
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`Fact discovery shall commence on August 17, 2023. Any requests for
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`production, interrogatories, requests for admission, subpoenas, or other discovery requests served
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`earlier than August 17, 2023 shall be deemed to have been served on August 17, 2023.
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`Document Production. Document production shall be substantially
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`b.
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`complete by July 25, 2024.
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`c.
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`Requests for Admission. A maximum of 50 requests for admission are
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`permitted for each side. Notwithstanding the foregoing, there shall be no limit on the number of
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`requests for admission for the purpose of authenticating documents.
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`d.
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`Interrogatories. A maximum of 50 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`(1)
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`By no later than August 20, 2024, the parties shall serve any
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`contention interrogatories that have not previously been served, to be counted to the maximum
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`number of permitted interrogatories.
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`2
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`(2)
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`By no later than September 19, 2024, the parties shall provide final
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`responses to any contention interrogatories. Such responses shall identify, by bates number, any
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`documents relied on pursuant to Fed. R. Civ. P. 33(d). Any supplementation thereafter shall be
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`limited to instances where a party has received new factual information that could not reasonably
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`have previously been obtained or analyzed, or otherwise can establish good cause for
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`supplementing.
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`e.
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`Limitation on Hours for Deposition Discovery from Fact Witnesses. 2 For
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`fact witnesses, each side is limited to a total of 120 hours of taking testimony by deposition upon
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`oral examination. Each deposition will count a minimum of3 hours towards the time limit for the
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`noticing party. Any questioning by the non-noticing party will be charged against that party for
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`the time on the record. Each side is limited to 7 hours of taking testimony by deposition upon oral
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`examination of any fact witness, provided that this limit may be increased by agreement among
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`the parties or by court order for good cause. 3 The parties will work in good faith to agree on time
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`limits for individual depositions in advance.
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`f.
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`Location of Depositions. Any party or representative (officer, director, or
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`managing agent) of a party filing a civil action in this district court must ordinarily be required,
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`upon request, to submit to a deposition at a place designated within this district. Exceptions to this
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`general rule may be made by order of the Court. A defendant who becomes a counterclaimant,
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`cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court
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`2
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`The parties agree to deem document discovery and deposition transcripts provided in C.A.
`No. 21-977 and C.A. No. 22-605 as though produced in this matter.
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`3
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`The parties agree that good cause is presumed (rebuttable) when a witness is designated on
`more than five Rule 30(b)(6) topics, or when a witness is identified in a party's Rule 26(a) initial
`disclosures as knowledgeable about topics relevant to both Abbott's infringement claims and/or
`defenses thereto, and DexCom's infringement counterclaims and/or defenses thereto.
`3
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`

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`for the purpose of this provision. The parties will work in good faith to agree on the location and
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`means for taking depositions.
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`g.
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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 November 22, 2024. The Court encourages the parties to serve
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`and respond to contention interrogatories early in the case.
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`h.
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`Disclosure of Expert Testimony. All expert discovery in this case shall be
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`initiated so that it will be completed on or before May 8, 2025. Unless otherwise agreed to by the
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`parties, they shall file their initial Federal Rule of Civil Procedure 26(a)(2) disclosures of expert
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`testimony on or before December 12, 2024, file a supplemental disclosure to contradict or rebut
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`evidence on the same subject matter identified by another party on or before January 23, 2025,
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`and file a further supplemental disclosure to reply on the same subject matter on or before
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`March 6, 2025. For expert witnesses, each side is limited to 7 hours of taking testimony by
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`deposition upon oral examination of any such witness, provided that this limit may be increased
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`by agreement among the parties or by court order for good cause. 4 To the extent any objection to
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`expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm.,
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`Inc., 509 U.S. 579 (1993), it shall be made by motion no later than the deadline for dispositive
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`motions set forth herein, unless otherwise ordered by the Court.
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`Discoveiy Disputes. Should counsel find they are unable to resolve a
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`discovery dispute, the party seeking the relief shall contact chambers at (302) 573-6001 to schedule
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`a telephone conference. Not less than seventy-two hours prior to the conference, the party seeking
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`4
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`The parties agree that good cause is presumed (rebuttable) when an expert addresses more
`than three unrelated patents asserted by either side on subjects of infringement, noninfringement,
`validity, and/or invalidity, or if an expert addresses at least one patent asserted by both Abbott in
`its infringement claims and DexCom in its infringement counterclaims on subjects of infringement,
`noninfringement, validity, and/or invalidity.
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`4
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`
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`relief shall file with the Court a letter, not to exceed 1,500 words, outlining the issues in dispute
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`and its position on those issues. (The Court does not seek extensive argument or authorities at this
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`point; it seeks simply a statement of the issue to be addressed and a summary of the basis for the
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`party's position on the issue.) Not less than twenty-four hours prior to the conference, any party
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`opposing the application for relief may file a letter, not to exceed 1,500 words, outlining that
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`party's reasons for its opposition. Should the Court find further briefing necessary upon conclusion
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`of the telephone conference, the Court will order it. Disputes over protective orders are to be
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`addressed in the first instance in accordance with this paragraph.
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`J.
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`Disclosures. Absent agreement among the parties, and approval of the
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`Court:
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`(1)
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`By August 17, 2023, the parties shall identify the accused
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`product(s), including accused methods and systems, and their damages models, as well as the
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`asserted patent(s) that the accused product(s) allegedly infringe(s). The parties shall also produce
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`the file history for each patent they are asserting.
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`(2)
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`By November 3, 2023, the parties shall produce core technical
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`documents relating to their accused product(s), sufficient to show how the accused product(s)
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`work(s), including but not limited to non-publicly available operation manuals, product literature,
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`schematics, and specifications. The parties shall also produce sales figures for their accused
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`products.
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`(3)
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`By December 20, 2023, the parties shall each produce an initial
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`claim chart relating each known accused product to the asserted claims each such product allegedly
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`infringes.
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`5
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`(4)
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`By January 25, 2024, the parties shall each produce their initial
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`invalidity contentions for each asserted claim, as well as the known related invalidating references.
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`(5)
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`By August 27, 2024, the parties shall provide final infringement
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`contentions.
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`contentions.
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`(6)
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`By September 19, 2024, the parties shall provide final invalidity
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`5.
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`Application to Court for Protective Order. The parties agree to adopt a Protective
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`Order that is equivalent to that ordered by the Court in C.A. No. 21-977, to be filed with the Court
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`within fourteen days of entry of this Order.
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`6.
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`Filings Under Seal. Papers Filed Under Seal. A redacted version of any sealed
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`document shall be filed electronically within seven (7) days of the filing of the sealed document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of a
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`court proceeding (including a teleconference}, such party should expressly note that intent at the
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`start of the court proceeding. Should the party subsequently choose to make a request for sealing
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`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
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`for sealing/redaction, and include as attachments (1) a copy of the complete transcript highlighted
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`so the Court can easily identify and read the text proposed to be sealed/redacted, and (2) a copy of
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`the proposed redacted/sealed transcript. With its request, the party seeking redactions must
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`demonstrate why there is good cause for the redactions and why disclosure of the redacted material
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`would work a clearly defined and serious injury to the party seeking redaction.
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`7.
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`Interim Status Report. No later than seven (7) days before the Status Conference
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`of paragraph 8, counsel shall submit a letter to the Court with an interim report on the nature of
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`the matters in issue and the progress of discovery to date.
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`6
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`Case 1:23-cv-00239-KAJ Document 54 Filed 09/19/23 Page 7 of 14 PageID #: 2662
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`8.
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`Status Conference. The Court will hold a Rule 16 conference on July 16, 2024.
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`If all parties agree that there is nothing to report, nor anything to add to the interim status
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`report or to this order, they may so notify the Court in writing before the conference is scheduled
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`to occur, and the conference will be taken off the Court's calendar.
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`9.
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`Tutorial Describing the Technology and Matters in Issue. Unless otherwise ordered
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`by the Court, the parties shall provide the Court, no later than the date on which their opening
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`claim construction briefs are due, tutorials on the technology at issue. In that regard, the parties
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`may separately or jointly submit separate DVDs of not more than 30 minutes with respect to each
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`of: (1) the patents asserted by Abbott in its infringement claims; and (2) the patents asserted by
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`DexCom in its counterclaims. The tutorials should focus on the technology in issue and should
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`not be used to argue claim construction contentions. The parties may choose to file their tutorial(s)
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`under seal, subject to any protective order in effect. Each party may comment, in writing (in no
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`more than 1,750 words per tutorial) on each of the opposing party's tutorials. Any such comment
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`shall be filed no later than the date on which the parties' answering claim construction briefs are
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`due. As to the format selected, the parties should confirm the Court's technical abilities to access
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`the information contained in the tutorial.
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`10.
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`Case Dispositive Motions.
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`a.
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`All case dispositive motions, an opening brief, and affidavits, if any, in
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`support of the motion shall be served and filed on or before July 17, 2025, with respect to Abbott's
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`infringement claims and associated defenses and counterclaims. All case dispositive motions, an
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`opening brief, and affidavits, if any, in support of the motion shall be served and filed on or before
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`October 3, 2025, with respect to Dexcom 's infringement claims and associated defenses and
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`counterclaims.
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`7
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`b.
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`Answering briefs shall be served and filed on or before August 14, 2025,
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`with respect to Abbott's infringement claims and associated defenses and counterclaims.
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`Answering briefs shall be served and filed on or before November 17, 2025, with respect to
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`Dexcom's infringement claims and associated defenses and counterclaims.
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`c.
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`Reply briefs shall be served and filed on or before September 17, 2025,
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`with respect to Abbott's infringement claims and associated defenses and counterclaims. Reply
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`briefs shall be served and filed on or before December 18, 2025, with respect to Dexcom's
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`infringement claims and associated defenses and counterclaims.
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`d.
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`No early motions without leave. No case dispositive motion under Rule 56
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`may be filed more than ten (10) days before the above date without leave of the Court.
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`e.
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`Word limits combined with Daubert motion word limits. Each party is
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`permitted to file as many case dispositive motions as desired provided, however, that each SIDE
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`will be limited to a combined total of 15,000 words for all opening briefs, a combined total of
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`15,000 words for all answering briefs, and a combined total of 7,500 words for all reply briefs
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`regardless of the number of case dispositive motions that are filed. In the event that a party files,
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`in addition to a case dispositive motion, a Daubert motion to exclude or preclude all or any portion
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`of an expert's testimony, the total amount of words permitted for all case dispositive and Daubert
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`motions shall be increased to 20,000 words for all opening briefs, 20,000 words for all answering
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`briefs, and 10,000 words for all reply briefs for each SIDE. 5 These word limits apply separately
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`5
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`The parties must work together to ensure that the Court receives no more than a total of
`100,000 words (i.e., 20,000 + 20,000 + 10,000 words regarding one side's motions, and 20,000 +
`20,000 + 10,000 words 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.
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`8
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`
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`to each of Abbott's infringement claims and associated defenses and counterclaims on the one
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`hand, and DexCom's infringement counterclaims and associated defenses and counter­
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`counterclaims on the other.
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`f.
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`Hearing.
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`(1)
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`On October 15, 2025 at 10:00 a.m., the Court will hear argument
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`on all pending dispositive and Daubert motions with respect to Abbott's infringement claims and
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`associated defenses and counterclaims. Subject to further order of the Court, each side will be
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`allocated a total of sixty ( 60) minutes to present its argument on all pending motions.
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`(2)
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`On January 22, 2026 at 10:00 a.m., the Court will hear argument
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`on all pending dispositive and Daubert motions with respect to DexCom's infringement
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`counterclaims and associated defenses and counter-counterclaims. Subject to further order of the
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`Court, each side will be allocated a total of sixty (60) minutes to present its argument on all pending
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`motions.
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`11.
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`Claim Construction Issue Identification. On or before February 8, 2024, 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 February 28, 2024, the parties shall exchange their proposed claim constructions of
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`all the term(s)/phrase(s) identified by the parties. These documents will not be filed with the Court.
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`Subsequent to exchanging that list, the parties will meet and confer by March 7, 2024, to prepare
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`a Joint Claim Construction Chart to be submitted on the date identified in paragraph 12.a below.
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`The parties' Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of
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`the claim(s) in issue, and should include each party's proposed construction of the disputed claim
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`language 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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`9
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`relied upon are to 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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`12.
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`Claim Construction Issue Submissions.
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`a.
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`The Joint Claim Construction Chart shall be submitted to the Court no later
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`than March 21, 2024.
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`b.
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`By April 18, 2024, the parties shall file opening claim construction briefs
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`regarding the patent(s) they are asserting, not to exceed 10,000 words.
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`c.
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`By May 16, 2024, the parties shall each file an answenng claim
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`construction brief, not to exceed 15,000 words.
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`d.
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`By May 30, 2024, the parties shall each file a reply claim construction brief,
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`not to exceed 10,000 words.
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`e.
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`By June 13, 2024, the parties shall each file a sur-reply claim construction
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`brief, not to exceed 5,000 words.
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`13.
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`Hearing on Claim Construction and Rule 16 Conference.
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`a.
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`Beginning at 10:00 a.m. on August 1, 2024, the Court will hear evidence
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`and argument on claim construction with respect to the patents asserted by Abbott.
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`b.
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`Beginning at 10:00 a.m. on September 12, 2024, the Court will hear
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`evidence and argument on claim construction with respect to the patents asserted by DexCom.
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`c.
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`The parties should be prepared to discuss with the Court how their claim
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`construction positions will affect their positions with respect to any filed or anticipated case
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`dispositive motions.
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`10
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`14.
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`Applications by Motion.
`a.
`Except as otherwise specified herein, any application to the Court shall be
`. /\.c;{
`by written motion filed with the Clerk. Unless otherwise requested by the Court, counsel shall�
`deliver copies of papers or correspondence to Chambers. Any non-dispositive motion should
`contain the statement required by Local Rule 7 .1.1.
`Motions to Amend.
`b.
`(I)
`Any motion to amend (including a motion for leave to amend) a
`pleading shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a
`letter, not to exceed 1,500 words, describing the basis for the requested relief, and shall attach the
`proposed amended pleading as well as a "blackline" comparison to the prior pleading.
`(2) 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 2,500
`words.
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`(3) Within three (3) days thereafter, the moving party may file a reply
`letter, not to exceed 1,000 words, and, by this same date, the parties shall file a letter requesting a
`teleconference to address the motion to amend.
`c.
`Motions to Strike.
`Any motion to strike any pleading or other document shall NOT be
`(I)
`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to exceed
`1,500 words, describing the basis for the requested relief, and shall attach the document to be
`stricken.
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`(2) Within seven (7) days after the filing of a motion in compliance with
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`this Order, any party opposing such a motion shall file a responsive letter, not to exceed 2,500
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`words.
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`(3) Within three (3) days thereafter, the moving party may file a reply
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`letter, not to exceed 1,000 words, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to strike.
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`d.
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`Motions to Compel Case Narrowing. Within 4 weeks of the Claim
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`Construction Order, the parties shall meet and confer to discuss narrowing the number of asserted
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`claims and prior art references at issue.
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`(1)
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`If the parties are unable to agree about the extent of narrowing
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`(asserted claims and/or prior art references), a party may move the Court to compel further
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`narrowing. Any such motion shall NOT be accompanied by an opening brief but shall, instead, be
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`accompanied by a letter, not to exceed 1,500 words, describing the basis for the requested relief.
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`(2) Within seven (7) days after the filing of a motion in compliance with
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`this Order, any party opposing such a motion shall file a responsive letter, not to exceed 2,500
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`words.
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`(3) Within three (3) days thereafter, the moving party may file a reply
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`letter, not to exceed 1,000 words, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to compel narrowing.
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`15.
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`Pretrial Conference.
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`a.
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`On February 9, 2026, the Court will hold a Final Pretrial Conference in
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`Chambers with counsel beginning at 10:00 a.m. with respect to Abbott's infringement claims and
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`associated defenses and counterclaims. Unless otherwise ordered by the Court, the parties should
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`12
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`assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of
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`Civil Procedure 26(a)(3). The parties shall file with the Court the final pretrial order with respect
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`to Abbott's infringement claims and associated defenses and counterclaims no later than
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`January 9, 2026.
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`b.
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`On June 11, 2026, the Court will hold a Final Pretrial Conference in
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`Chambers with counsel beginning at 10:00 a.m. with respect to DexCom's infringement
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`counterclaims and associated defenses and counter-counterclaims. Unless otherwise ordered by
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`the Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
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`requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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`final pretrial order with respect to DexCom's infringement counterclaims and associated defenses
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`and counter-counterclaims no later than May 12, 2026.
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`16. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial orders. Each party shall
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`be limited to five in limine requests with respect to Abbott's infringement claims and associated
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`defenses and counterclaims, and five in limine requests with respect to DexCom's infringement
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`counterclaims and associated defenses and counter-counterclaims, unless otherwise permitted by
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`the Court. The in limine request and any response shall contain the authorities relied upon; each
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`in limine request may be supported by a maximum of 2,500 words of argument and may be
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`opposed by a maximum of 2,500 words of argument. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single 2,500-
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`word submission, unless otherwise ordered by the Court. No separate briefing shall be submitted
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`on in limine requests, unless otherwise permitted by the Court.
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`17.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried
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`to a jury, pursuant to Local Rules 47 and 51 the parties should file proposed voir dire, instructions
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`to the jury, and special verdict forms and jury interrogatories three full business days before the
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`final pretrial conference with respect to that trial. That submission shall be accompanied by a
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`computer diskette (in WordPerfect or Word format) which contains the instructions, proposed voir
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`dire, special verdict forms, and jury interrogatories.
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`18.
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`Trial.
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`a.
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`This matter is scheduled for a 10-day jury trial beginning at 9:30 a.m. on
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`March 9, 2026, with respect to Abbott's infringement claims and associated defenses and
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`counterclaims. For the purpose of completing pretrial preparations, counsel should plan on each
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`side being allocated a total of 22 hours to present its case.
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`b.
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`This matter is scheduled for a 10-day jury trial beginning at 9:30 a.m. on
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`July 13, 2026, with respect to DexCom's infringement counterclaims and associated defenses and
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`counter-counterclaims. For the purpose of completing pretrial preparations, counsel should plan
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`on each side being allocated a total of 22 hours to present its case.
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`14
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