Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`STANDING ORDER GOVERNING PROCEEDINGS (OGP) 4.1—PATENT CASES
`
`This OGP governs proceedings in all patent cases pending before the undersigned or Judge
`Derek T. Gilliland and takes effect upon entry in all patent cases, except where noted. If there are
`conflicts between this OGP and prior versions in existing cases that the parties are unable to
`resolve, the parties are encouraged to contact the Court for guidance via email to the Court’s law
`clerk.
`
`Parties should generally email any inquiries to the Court’s law clerk. The Court’s voicemail is
`not checked regularly. Email is the preferred contact method.
`
`Parties should generally use the following email address that includes the Court’s law clerks for
`both Judge Albright and Judge Gilliland:
`
`TXWDml_LawClerks_WA_JudgeAlbright&Gilliland@txwd.uscourts.gov.
`
`Messages directed only to Judge Albright’s law clerks may be sent to:
`
`TXWDml_LawClerks_WA_JudgeAlbright@txwd.uscourts.gov.
`
`Messages directed only to Judge Gilliland’s law clerks may be sent to:
`
`TXWDml_NoJudge_Chambers_WA_JudgeGilliland@txwd.uscourts.gov.
`
`I. NOTICE OF READINESS1
`
`In all patent cases pending before the undersigned or Judge Gilliland, the parties are directed to
`jointly file the Case Readiness Status Report (“CRSR”) in the format attached as Appendix B:
`(a) within 7 days after the Defendant (or at least one Defendant among a group of related
`Defendants sued together) has responded to the initial pleadings in cases where there are no
`CRSR Related Cases, or (b) when there are CRSR Related Cases, within 7 days after the last
`Defendant (or last Defendant group when at least one Defendant among the group has
`responded) among the CRSR Related Cases has responded to the initial pleadings. The CRSR
`shall be filed in each case and identify all other CRSR Related Cases. For this Order, cases shall
`be considered CRSR Related Cases when they meet both criteria: (1) the cases are filed within
`30 days after the first case is filed, and (2) the cases share at least one common asserted patent.
`
`The parties shall meet and confer before jointly filing the CRSR. Plaintiff shall have
`responsibility for filing the CRSR on time. If the parties have any pre-Markman issues needing
`resolution, the parties shall email the Court a joint submission of the parties’ positions after filing
`the CRSR so the Court can consider whether to hold a hearing to resolve these issues. If the
`
`
`1 This supersedes the March 7, 2022 Standing Order Regarding Notice of Readiness for Patent Cases.
`
`OGP Version 4.1
`
`1
`
`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`
`BY: ________________________________
`
`FILED
`
`DEPUTY
`
`April 14, 2022
`
`J. Galindo-Beaver
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 2 of 18
`
`parties do not have any pre-Markman issues needing resolution, then the parties need not email
`the CRSR to the Court.
`
`The Case Management Conference (“CMC”) shall be deemed to occur 14 days after the filing
`date of the CRSR. If the CRSRs in CRSR Related Cases are not all submitted on the same date,
`the CMC shall be deemed to occur 14 days after the last CRSR in those CRSR Related Cases is
`filed. The Court intends to coordinate the CRSR Related Cases on the same schedule with a
`single Markman hearing, so the parties should plan accordingly. In all cases, the Markman
`hearing shall be initially scheduled for 23 weeks after the CMC and should be included in the
`parties’ proposed Scheduling Order in accordance with this Order.
`
`II. GENERAL DEADLINES
`
`The following deadlines apply:
`
`1. Patent cases shall be set for a Rule 16 CMC in accordance with the preceding section.
`
`2. Not later than 7 days before the CMC. The plaintiff shall serve preliminary infringement
`contentions chart setting forth where in the accused product(s) each element of the
`asserted claim(s) are found. The plaintiff shall also identify the priority date (i.e., the
`earliest date of invention) for each asserted claim and produce: (1) all documents
`evidencing conception and reduction to practice for each claimed invention, and (2) a
`copy of the file history for each patent in suit.
`
`3. Two weeks after the CMC. The parties shall file a motion to enter an agreed Scheduling
`Order that generally tracks the exemplary schedule attached as Exhibit A to this OGP,
`which should suit most cases. If the parties cannot agree, the parties shall submit a joint
`motion for entry of a Scheduling Order briefly setting forth their scheduling
`disagreement. Absent agreement of the parties, the plaintiff shall be responsible for the
`timely submission of this and other joint filings. When filing any Scheduling Order, the
`parties shall also jointly send an editable copy to the Court’s law clerk.
`
`4. Seven weeks after the CMC. The defendant shall serve preliminary invalidity contentions
`in the form of (1) a chart setting forth where in the prior art references each element of
`the asserted claim(s) are found, (2) an identification of any limitations the defendant
`contends are indefinite or lack written description under § 112, and (3) an identification
`of any claims the defendant contends are directed to ineligible subject matter under §
`101. The § 101 contention shall (1) identify the alleged abstract idea, law of nature,
`and/or natural phenomenon in each challenged claim; (2) identify each claim element
`alleged to be well-understood, routine, and/or conventional; and (3) to the extent not
`duplicative of §§ 102/103 prior art contentions, prior art for the contention that claim
`elements are well-understood, routine, and/or conventional. The defendant shall also
`produce (1) all prior art referenced in the invalidity contentions, and (2) technical
`
`OGP Version 4.1
`
`2
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 3 of 18
`
`documents, including software where applicable, sufficient to show the operation of the
`accused product(s).2
`
`III. GENERAL DISCOVERY LIMITS
`
`Except with regard to venue, jurisdictional, and claim construction-related discovery, all other
`discovery shall be stayed until after the Markman hearing. Notwithstanding this general stay of
`discovery, the Court will permit limited discovery by agreement of the parties, or upon request,
`where exceptional circumstances warrant it. For example, if discovery outside the United States
`is contemplated via the Hague, the Court is inclined to allow such discovery to commence before
`the Markman hearing.
`
`Following the Markman hearing, the following discovery limits apply. The Court will consider
`reasonable requests to adjust these limits should circumstances warrant.
`
`1. Interrogatories: 30 per side3
`2. Requests for Admission: 45 per side
`3. Requests for Production: 75 per side
`4. Fact Depositions: 70 hours per side (for both party and non-party witnesses combined)
`5. Expert Depositions: 7 hours per report4
`
`Electronically Stored Information. As a preliminary matter, the Court will not require general
`search and production of email or other electronically stored information (ESI) related to email
`(such as metadata), absent a showing of good cause. If a party believes targeted email/ESI
`discovery is necessary, it shall propose a procedure identifying custodians and search terms it
`believes the opposing party should search. The opposing party can oppose or propose an
`alternate plan. If the parties cannot agree, they shall contact the Court in accordance with the
`procedures below, to discuss their respective positions.
`
`IV. DISCOVERY DISPUTES
`
`Procedure. A party may not file a Motion to Compel discovery unless: (1) lead counsel have
`met and conferred in good faith to try to resolve the dispute, and (2) the party has contacted the
`Court’s law clerk to summarize the dispute and the parties’ respective positions. When
`
`
`2 To the extent it may promote early resolution, the Court encourages the parties to exchange license and
`sales information, but any such exchange is optional during the pre-Markman phase of the case.
`3 A “side” shall mean the plaintiff (or related plaintiffs suing together) on the one hand, and the defendant
`(or related defendants sued together) on the other hand. If the Court consolidates related cases for pretrial
`purposes, with regard to calculating limits imposed by this OGP, a “side” shall be interpreted as if the
`cases were proceeding individually. For example, in consolidated cases the plaintiff may serve up to 30
`interrogatories on each defendant, and each defendant may serve up to 30 interrogatories on the plaintiff.
`4 For example, if a single technical expert submits reports on both infringement and invalidity, he or she
`may be deposed for up to 14 hours in total.
`
`OGP Version 4.1
`
`3
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 4 of 18
`
`contacting the Court’s law clerk for discovery or procedural disputes, the following procedures
`shall apply.
`
`If the parties remain at an impasse after lead counsel have met and conferred, the requesting
`party shall email a summary of the issue(s) and specific relief requested to all counsel of record.
`The summary of the issue shall not exceed 500 words for one issue or a combined 1,000 words
`for multiple issues. The responding party has 3 days thereafter to provide an email response, also
`not to exceed 500 words for one issue or a combined 1,000 words for multiple issues. The
`specific relief requested should propose the exact language to be issued in a court order for each
`part of every disputed issue. The specific relief requested does not count toward the word limits.
`The Court encourages the parties to provide their submission in the following table format,
`which clearly identifies the disputed issues and specific relief requested.
`
`Issue
`
`Requesting Party’s Position
`
`Responding Party’s Position
`
`Example:
`
`RFP 1:
`All sale
`records of
`the Product.
`
`ROG 5:
`Identify all
`employees
`who worked
`on the
`Product.
`
`
`
`Responding Party didn’t produce
`anything. Responding Party keeps
`its sales records in a sales database.
`
`Relief: Order that “Responding
`Party must produce a copy of the
`sales database within 7 days.”
`
`Responding Party only identified a
`subset of the employees.
`
`Relief: Order that “Responding
`Party is compelled to fully respond
`to ROG 5 by identifying the names
`and locations of the remaining
`employees who worked on Product
`by [date].”
`
`We found no sales records of the
`Product in the sales database.
`
`
`Relief: Find that “no documents
`responsive to RFP 5 exist” and deny
`Requesting Party’s relief.
`
`We identified the relevant employees.
`The other employees are not relevant,
`and it is too burdensome to identify
`every employee.
`
`Relief: Order that “Responding Party
`need not identify any other employees in
`response to ROG 5.”
`
`Once the opposing party provides its response, the requesting party shall email the summaries of
`the issues to the Court’s law clerk with opposing counsel copied. If a hearing is requested, the
`parties shall indicate in the email whether any confidential information will be presented.
`Thereafter, the Court will provide guidance to the parties regarding the dispute or arrange a
`telephonic or Zoom hearing. The hearing shall proceed in the sequence of issues charted.
`
`Written Order.5 Within 7 days of the discovery hearing, the parties shall email a joint proposed
`order to the Court’s law clerk that includes the summaries of the issues, relief requested, and the
`
`
`5 This supersedes the June 17, 2021 Standing Order for Discovery Hearings in Patent Cases.
`
`OGP Version 4.1
`
`4
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 5 of 18
`
`parties’ understanding of the Court’s ruling. If one party disputes the language of the order, then
`that party shall send an editable version of the proposed order to the Court’s law clerk with the
`disputed language in tracked changes.
`
`V. VENUE & JURISDICTIONAL DISCOVERY
`The Court hereby6 establishes the following presumptive limits on discovery related to venue
`and jurisdiction: each party is limited to 5 interrogatories, 10 Requests for Production, and 10
`hours of deposition testimony. The time to respond to such discovery requests is reduced to 20
`days. If a party believes these limits should be expanded, the party shall meet and confer with
`opposing counsel and if an impasse is reached, the requesting party is directed to contact the
`Court’s law clerk for a telephonic hearing.
`
`Venue or jurisdictional discovery automatically opens upon the filing of an initial venue or
`jurisdictional motion and shall be completed no later than 10 weeks after the filing of such
`motion. Parties shall file a notice of venue or jurisdictional discovery if the discovery will delay
`a response to a motion to transfer.
`
`VI. MOTIONS FOR TRANSFER
`
`This section applies to all cases filed on or after March 7, 2022. Otherwise, the Second Amended
`Standing Order Regarding Motions for Inter-District Transfer controls earlier-filed cases.
`
`A motion to transfer anywhere may be filed within 3 weeks after the CMC or within 8 weeks of
`receiving or waiving service of the complaint, whichever is later. Thereafter, a movant must
`show good cause for any delay and seek leave of court. The deadline for plaintiff’s response is 2
`weeks after the completion of venue or jurisdictional discovery. The deadline for Defendant’s
`reply is 2 weeks after the filing of the response.
`
`The following page limits and briefing schedule apply to motions to transfer:
`
`a. Opening – 15 pages
`
`b. Response – 15 pages, due 14 days after the completion of venue or jurisdictional
`discovery, if such discovery is conducted; otherwise, 14 days after the Opening brief
`
`c. Reply – 5 pages, due 14 days after the Response brief
`
`All parties who have filed a motion to transfer shall provide the Court with a status report
`indicating whether the motion has been fully briefed at each of the following times: 1) when the
`motion to transfer becomes ready for resolution, 2) at 4 weeks before the Markman hearing date
`if the motion to transfer remains unripe for resolution and 3) if there are multiple Markman
`hearings, the status report is due 6 weeks before the first scheduled Markman hearing. In
`addition, if by 1 week before the Markman hearing the Court has not ruled on any pending
`
`
`6 This supersedes the June 8, 2021 Amended Standing Order Regarding Venue and Jurisdictional
`Discovery Limits for Patent Cases.
`
`OGP Version 4.1
`
`5
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 6 of 18
`
`motion to transfer, the moving party is directed to email the Court’s law clerk (and the technical
`advisor, when appointed), and indicate that the motion to transfer is pending.
`
`If a motion to transfer remains pending, the Court will either promptly resolve the pending
`motion before the Markman hearing, or postpone the Markman hearing. Whenever a Markman
`hearing is postponed pursuant to this OGP (e.g., because the transfer motion has not yet ripened
`or only recently ripened), Fact Discovery will begin one day after the originally scheduled
`Markman hearing date.
`
`VII. MEET AND CONFER REQUIREMENT FOR
`EARLY MOTIONS TO DISMISS INDIRECT AND WILLFUL INFRINGEMENT
`
`Any party seeking to dismiss claims of indirect or willful infringement before fact discovery
`must first meet and confer with the opposing party to discuss dismissing those allegations
`without prejudice, with leave to re-plead those allegations with specificity if supported by a good
`faith basis under Rule 11. Under this agreement, the patent owner may re-plead those allegations
`within three months after fact discovery opens, and the parties agree to permit fact discovery on
`indirect and willful infringement during those three months. The party moving to dismiss must
`attach a certification of compliance with this OGP to its motion to dismiss.
`
`An agreement to dismiss under this section shall be filed as a joint notice instead of as a motion.
`
`VIII.
`
`INTERIM PROTECTIVE ORDER
`
`The Court provides a Model Protective Order on its website. Pending entry of the final Protective
`Order, the Court issues the following interim Protective Order to govern the disclosure of
`confidential information:
`
`If any document or information produced in this matter is deemed confidential by the
`producing party and if the Court has not entered a protective order, until a protective
`order is issued by the Court, the document shall be marked “confidential” or with some
`other confidential designation (such as “Confidential – Outside Attorneys’ Eyes Only”)
`by the disclosing party and disclosure of the confidential document or information shall
`be limited to each party’s outside attorney(s) of record and the employees of such outside
`attorney(s).
`
`If a party is not represented by an outside attorney, disclosure of the confidential
`document or information shall be limited to one designated “in house” attorney, whose
`identity and job functions shall be disclosed to the producing party 5 days prior to any
`such disclosure, in order to permit any motion for protective order or other relief
`regarding such disclosure. The person(s) to whom disclosure of a confidential document
`or information is made under this OGP shall keep it confidential and use it only for
`purposes of litigating the case.
`
`OGP Version 4.1
`
`6
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 7 of 18
`
`IX. CLAIM CONSTRUCTION
`
`Limits for Number of Claim Terms to be Construed
`
`1-2 Patents
`8 terms
`
`3-5 Patents
`10 terms
`
`More than 5 Patents
`12 terms
`
`Terms for Construction. Based on the Court’s experience, the Court believes that it should
`have presumed limits on the number of claim terms to be construed. The “presumed limit” is the
`maximum number of terms that each side may request the Court to construe without further
`leave of Court. If the Court grants leave for additional terms to be construed, depending on the
`complexity and number of terms, the Court may split the Markman hearing into multiple
`hearings.
`
`The presumed limits based on the number of patents-in-suit are as follows:
`
`
`
`When the parties submit their joint claim construction statement, in addition to the term and the
`parties’ proposed constructions, the parties should indicate which party or side proposed that
`term, or if that was a joint proposal.
`
`Briefing Procedure and Page Limits
`
`The Court will require non-simultaneous Markman briefing with the following default page
`limits. When exceptional circumstances warrant, the Court will consider reasonable requests to
`adjust these limits. These page limits shall also apply collectively for coordinated and
`consolidated cases; however, the Court will consider reasonable requests to adjust page limits in
`consolidated cases where circumstances warrant. The Court has familiarity with the law of claim
`construction and encourages the parties to forego lengthy recitations of legal authorities and to
`instead focus on the substantive issues unique to each case.
`
`Unless otherwise agreed to by the parties, the default order of terms in the parties’ briefs shall be
`based on 1) the patent number (lowest to highest), the claim number (lowest to highest), and
`order of appearance within the lowest number patent and claim. An example order may be as
`follows:
`
`1. 10,000,000 Patent, Claim 1, Term 1
`2. 10,000,000 Patent, Claim 1, Term 2 (where Term 2 appears later in the claim than does
`Term 1)
`3. 10,000,000 Patent, Claim 2, Term 3 (where Term 3 appears later in the claim than does
`Terms 2 and 3)
`4. 10,000,001 Patent, Claim 1, Term 4
`5. 10,000,001 Patent, Claim 3, Term 5
`6. 10,000,002 Patent, Claim 2, Term 6
`
`If that the same or similar terms appear in multiple claims, those same or similar terms should be
`ordered according to the lowest patent number, lowest claim number, and order of appearance
`within the patent and claim.
`
`OGP Version 4.1
`
`7
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 8 of 18
`
`
`
`Brief
`Opening
`(Defendant)
`
`Response
`(Plaintiff)
`
`Reply
`(Defendant)
`
`Sur-Reply
`(Plaintiff)
`
`1-2 Patents
`20 pages
`
`3-5 Patents
`30 pages
`
`20 pages
`
`30 pages
`
`10 pages
`
`15 pages
`
`10 pages
`
`15 pages
`
`More than 5 Patents
`30 pages, plus 5
`additional pages for
`each patent over 5 up
`to a maximum of 45
`pages
`30 pages, plus 5
`additional pages for
`each patent over 5 up
`to a maximum of 45
`pages
`15 pages, plus 2
`additional pages for
`each patent over 5 up
`to a maximum of 21
`pages
`15 pages, plus 2
`additional pages for
`each patent over 5 up
`to a maximum of 21
`pages
`
`
`After briefing concludes, the parties shall file a Joint Claim Construction Statement and email an
`editable copy to the Court’s law clerks.
`
`Technology Tutorials and Conduct of the Markman Hearing
`
`Technology tutorials are optional, especially in cases where a technical advisor has been
`appointed. If the parties submit one, the tutorial should be in electronic form, with voiceovers,
`and submitted at least 10 days before the Markman hearing. In general, tutorials should be: (1)
`directed to the underlying technology (rather than argument related to infringement or validity),
`and (2) limited to 15 minutes per side. The tutorial will not be part of the record and the parties
`may not rely on or cite to the tutorial in other aspects of the litigation.
`
`The Court generally sets aside one hour for the Markman hearing; however, the Court is open to
`reserving more or less time, depending on the complexity of the case and input from the parties.
`As a general rule, the party opposing the Court’s preliminary construction shall go first. If both
`parties oppose the Court’s preliminary construction, the plaintiff shall typically go first.
`
`The Court will provide preliminary constructions to the parties ahead of the Markman hearing.
`At the Markman hearing, the Court encourages oral arguments that fine-tune the preliminary
`constructions over arguments repeated from the briefs.
`
`OGP Version 4.1
`
`8
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 9 of 18
`
`X. GENERAL ISSUES
`
`1. The Court will entertain reasonable requests to streamline the case schedule and discovery.
`The Parties should contact the Court’s law clerk when a change might help streamline the
`case.
`
`2. The Court is generally willing to extend the response to the Complaint up to 45 days if
`agreed by the parties. However, longer extensions are disfavored.
`
`3. Speaking objections during depositions are improper. Objections during depositions shall be
`stated concisely and in a nonargumentative and nonsuggestive manner. Examples of
`permissible objections include: “Objection, leading,” “Objection, compound,” “Objection,
`vague.” Other than to evaluate privilege issues, counsel should not confer with a witness
`while a question is pending. Counsel may confer with witnesses during breaks in a deposition
`without waiving any otherwise applicable privilege.
`
`4. Plaintiff must file a notice informing the Court when an IPR is filed, the expected time for an
`institution decision, and the expected time for a final written decision, within 2 weeks of the
`filing of the IPR.
`
`5. After the trial date is set, the Court will not move the trial date except in extreme situations.
`If a party believes that the circumstances warrant continuing the trial date, the parties are
`directed to contact the Court’s law clerk.
`
`6. The Court does not limit the number of motions for summary judgment (MSJs), Daubert
`motions, or Motions in limine (MIL) a party may file. However, absent leave of Court, the
`cumulative page limit for opening briefs for all MSJs is 40 pages per side, for all Daubert
`motions is 40 pages per side, and for all MILs is 15 pages per side. Each responsive MSJ,
`Daubert, and MIL brief is limited to the pages utilized in the opening brief or by the local
`rules, whichever is greater; and the cumulative pages for responsive briefs shall be no more
`than cumulative pages utilized in the opening briefs. Reply brief page limits shall be
`governed by the local rules.
`
`7. For Markman briefs,7 summary judgment motions, and Daubert motions, the parties shall
`jointly deliver to Chambers one double-sided paper copy of the Opening, Response, and
`Reply briefs, omitting attachments, at least 10 days before the hearing. Absent agreement to
`the contrary, the plaintiff shall be responsible for delivering a combined set of paper copies to
`chambers. Each party shall also provide an electronic copy of the briefs, exhibits, and the
`optional technology tutorial via USB drive. For Markman briefs, the parties should also
`include one paper copy of all patents-in-suit and an editable copy of the Joint Claim
`Construction Statement. If the Court appoints a technical advisor, each party shall deliver the
`same to the technical advisor, also 10 days before the hearing.
`
`
`7 But if the Court appoints a technical advisor for claim construction, the parties should not provide a
`copy of the Markman briefs to the Court.
`
`OGP Version 4.1
`
`9
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 10 of 18
`
`8. When filing the Joint Claim Construction Statement or proposed Protective Order, the parties
`shall also email the law clerk a Word version of the filed documents.
`
`9. For all non-dispositive motions, the parties shall submit a proposed Order. The proposed
`Order shall omit the word “Proposed” from the title.
`
`10. Unless the Court indicates otherwise, the following Zoom information shall be used for all
`non-private hearings. The public is allowed to attend non-private hearings. Any party who
`intends to present confidential information shall email the Court’s law clerk to request a
`private Zoom setup.
`
`Hearings before Judge Albright:
`
`https://txwd-
`uscourts.zoomgov.com/j/1613131172?pwd=ek9WOFZLeHZXalNYVmFOdkJabDJoQT09
`
`Meeting ID: 161 313 1172
`Passcode: 167817
`One tap mobile: +16692545252,,1613131172#,,,,*167817
`
`Hearings before Judge Gilliland:
`
`https://txwd-
`uscourts.zoomgov.com/j/1610427634?pwd=V2RpaERVTkdySGI4b2F6cTZGSWRiZz09
`
`Meeting ID: 161 042 7634
`Passcode: 098663
`One tap mobile +16692545252,,1610427634#,,,,*098663
`
`
`
`
`SIGNED this 14th day of April, 2022.
`
`
`
`
`
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`OGP Version 4.1
`
`10
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 11 of 18
`
`XI. APPENDIX A – EXEMPLARY SCHEDULE
`
`Deadline
`
`Item
`
`8 weeks after receiving or
`waiving service of
`complaint or 3 weeks after
`the CMC, whichever is
`later.
`
`7 days before CMC
`
`2 weeks after CMC
`
`7 weeks after CMC
`
`Deadline to file a motion for inter-district transfer. After this
`deadline, movants must seek leave of Court and show good
`cause for the delay.
`
`Plaintiff serves preliminary8 infringement contentions in the
`form of a chart setting forth where in the accused product(s)
`each element of the asserted claim(s) are found. Plaintiff shall
`also identify the earliest priority date (i.e. the earliest date of
`invention) for each asserted claim and produce: (1) all
`documents evidencing conception and reduction to practice
`for each claimed invention, and (2) a copy of the file history
`for each patent in suit.
`
`The Parties shall file a motion to enter an agreed Scheduling
`Order. If the parties cannot agree, the parties shall submit a
`separate Joint Motion for entry of Scheduling Order briefly
`setting forth their respective positions on items where they
`cannot agree. Absent agreement of the parties, the Plaintiff
`shall be responsible for the timely submission of this and other
`Joint filings.
`
`Defendant serves preliminary invalidity contentions in the
`form of (1) a chart setting forth where in the prior art
`references each element of the asserted claim(s) are found, (2)
`an identification of any limitations the Defendant contends are
`indefinite or lack written description under section 112, and
`(3) an identification of any claims the Defendant contends are
`directed to ineligible subject matter under section 101.
`Defendant shall also produce (1) all prior art referenced in the
`invalidity contentions, and (2) technical documents, including
`software where applicable, sufficient to show the operation of
`the accused product(s).
`
`
`8 The parties may amend preliminary infringement contentions and preliminary invalidity contentions
`without leave of court so long as counsel certifies that it undertook reasonable efforts to prepare its
`preliminary contentions and the amendment is based on material identified after those preliminary
`contentions were served and should do so seasonably upon identifying any such material. Any
`amendment to add patent claims requires leave of court so that the Court can address any scheduling
`issues.
`
`OGP Version 4.1
`
`11
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 12 of 18
`
`9 weeks after CMC
`
`Parties exchange claim terms for construction.
`
`11 weeks after CMC
`
`Parties exchange proposed claim constructions.
`
`12 weeks after CMC
`
`13 weeks after CMC
`
`14 weeks after CMC
`
`Parties disclose extrinsic evidence. The parties shall disclose
`any extrinsic evidence, including the identity of any expert
`witness they may rely upon with respect to claim construction
`or indefiniteness. With respect to any expert identified, the
`parties shall identify the scope of the topics for the witness’s
`expected testimony.9 With respect to items of extrinsic
`evidence, the parties shall identify each such item by
`production number or produce a copy of any such item if not
`previously produced.
`
`Deadline to meet and confer to narrow terms in dispute and
`exchange revised list of terms/constructions.
`
`Defendant files Opening claim construction brief, including
`any arguments that any claim terms are indefinite.
`
`17 weeks after CMC
`
`Plaintiff files Responsive claim construction brief.
`
`19 weeks after CMC
`
`Defendant files Reply claim construction brief.
`
`19 weeks after CMC
`
`Parties to jointly email the law clerks (see OGP at 1) to
`confirm their Markman date and to notify if any venue or
`jurisdictional motions remain unripe for resolution.
`
`21 weeks after CMC
`
`Plaintiff files a Sur-Reply claim construction brief.
`
`3 business days after
`submission of sur-reply
`
`Parties submit Joint Claim Construction Statement and email
`the law clerks an editable copy.
`
`See General Issues Note #7 regarding providing copies of the
`briefing to the Court and the technical advisor (if appointed).
`
`Parties submit optional technical tutorials to the Court and
`technical advisor (if appointed).
`
`22 weeks after CMC (but
`at least 10 days before
`Markman hearing)
`
`
`9 Any party may utilize a rebuttal expert in response to a brief where expert testimony is relied upon by
`the other party.
`
`OGP Version 4.1
`
`12
`
`

`

`Case 6:20-cv-00272-ADA Document 70 Filed 04/14/22 Page 13 of 18
`
`23 weeks after CMC (or as
`soon as practicable)10
`
`Markman Hearing at 9:00 a.m. This date is a placeholder and
`the Court may adjust this date as the Markman hearing
`approaches.
`
`1 business day after
`Markman hearing
`
`Fact Discovery opens; deadline to serve Initial Disclosures per
`Rule 26(a).
`
`6 weeks after Markman
`hearing
`
`8 weeks after Markman
`hearing
`
`Deadline to add parties.
`
`Deadline to serve Final Infringement and Invalidity
`Contentions. After this date, leave of Court is required for any
`amendment to infringement or invalidity contentions. This
`deadline does not relieve the parties of their obligation to
`seasonably amend if new information is identified after initial
`contentions.
`
`16 weeks after Markman
`hearing
`
`Deadline to amend pleadings. A motion is not required unless
`the amendment adds patents or patent claims. (Note: This
`includes amendments in response to a 12(c) motion.)
`
`26 weeks after Markman
`
`30 weeks after Markman
`hearing
`
`31 weeks after Markman
`hearing
`
`35 weeks after Markman
`hearing
`
`38 weeks after Markman
`hearing
`
`39 weeks after Markman
`hearing
`
`Deadline for the first of two meet and confers to discuss
`significantly narrowing the number of claims asserted and
`prior art references at issue. Unless the parties agree to the
`narrowing, they are ordered to contact the Court’s law clerk to
`arrange a teleconference with the Court to resolve the disputed
`issues.
`
`Close of Fact Discovery.
`
`Opening Expert