Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`STRATOSAUDIO INC.,
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`Plaintiff,
`v.
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`HYUNDAI MOTOR AMERICA,
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`Defendant.
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`STRATOSAUDIO INC.,
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`Plaintiff,
`v.
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`MAZDA MOTORS OF AMERICA, INC.,
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`Defendant.
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`STRATOSAUDIO INC.,
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`Plaintiff,
`v.
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`SUBARU OF AMERICA, INC.
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`Defendant.
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`STRATOSAUDIO INC.,
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`Plaintiff,
`v.
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`VOLVO CARS USA, LLC,
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`Defendant.
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`STRATOSAUDIO INC.,
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`Plaintiff,
`v.
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`VOLKSWAGEN GROUP OF
`AMERICA, INC.,
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`Defendant.
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`) Case No. 6:20-CV-01125-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1126-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1128-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1129-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-CV-01131-ADA
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`) JURY TRIAL DEMANDED
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 2 of 22
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`JOINT MOTION FOR ENTRY OF DISPUTED SCHEDULING ORDERS
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`On May 4, 2021, the Court informed the parties that because there were no pre-Markman
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`issues raised in the parties’ Joint Case Readiness Status Report, the May 13, 2021 Rule 16 Case
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`Management Conference (“CMC”) was vacated and the CMC would be deemed to have been
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`held for calendaring purposes only. The Court set the following case deadlines:
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`1. CMC: Deemed to have occurred on 5/13/2021 (Plaintiff shall also have until
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`this date to serve its preliminary infringement contentions)
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`2. Markman: 10/4/2021 at 9:30 (1.5 hours)
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`3. Estimated trial date: 10/3/2022
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`After meeting and conferring, the parties reached agreement on all remaining case deadlines
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`except for the deadline for Defendants to serve their preliminary invalidity contentions. Pursuant
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`to the Court’s Order Governing Proceedings in Patent Cases, the parties provide below their
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`competing positions on this dispute, followed by the competing case schedules. The parties
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`respectfully request that the Court resolve this dispute and enter an appropriate schedule for the
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`remainder of the case.1
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`PLAINTIFF’S POSITION:
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`The dispute here is whether the Court should apply its standing Order and set
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`Defendants’ deadline for invalidity contentions seven weeks after the date the CMC was deemed
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`1 Defendants Volkswagen Group of America, Inc. (“VW”) and Hyundai Motor America
`(“HMA”) believe a scheduling order should not be entered at this time, and this litigation should
`not go forward in this Court, unless and until the Court rules on their respective motions to
`dismiss for improper venue. VW and HMA join this motion only because they brought these
`concerns to the Court, and the Court stated on May 17, 2021 via email: “The Court will not stay
`the cases pending rulings on the motions to dismiss/transfer. Pursuant to the Court’s Standing
`Order Regarding Motion(s) for Inter-District Transfer, the Court will rule on these motions
`before Markman hearing.”
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 3 of 22
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`to have occurred, as Plaintiffs contend, or whether the Court should postpone invalidity
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`contentions pending certain e-mail discovery, as Defendants contend. The Court should adopt
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`Plaintiff’s proposal.
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`Plaintiff’s proposal is simple. It sets July 1, 2021 as the deadline for preliminary
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`invalidity contentions. That date is seven (7) weeks after May 13, 2021, the date the CMC was
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`deemed to have occurred, which is consistent with the Court’s standard schedule for patent cases.
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`Defendants proposal is open-ended. Specifically, Defendants ask the Court to set the
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`deadline for preliminary invalidity contentions to be “[e]ight weeks after Plaintiff ‘identif[ies]
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`the priority date (i.e. the earliest date of invention) for each asserted claim and produce[s]: (1)
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`all documents evidencing conception and reduction to practice for each claimed invention,’ to
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`the extent that Plaintiff intends to rely on those documents in this case to prove conception or
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`reduction to practice.” This proposal suggests Plaintiffs have not yet given Defendants this
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`information, but that is inaccurate: Plaintiff StratosAudio Inc. (“Stratos”) has given Defendants
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`all the information it is currently able to provide.
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`As for priority dates, Stratos gave Defendants the earliest effective filing date for each
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`asserted patent with its infringement contentions. (See Ex. A, p.3). As for the earliest date of
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`invention, Stratos told Defendants that, based on currently available evidence, Stratos believes
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`that date to be November 19, 1999. (See Ex. B). Stratos has thus given Defendants the entire
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`range of dates it could reasonably claim as its invention date, from the earliest possible date (the
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`date of conception) to the latest (the effective filing date).2
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`As for documents evidencing conception and reduction to practice, Stratos gave
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`Defendants all the documents it was able to locate after a reasonably diligent search. Indeed,
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`2 At this time, Stratos does not claim a reduction to practice prior to its effective filing dates.
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 4 of 22
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`Stratos produced over 100,000 pages of documents with its initial contentions, including inventor
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`notebooks evidencing conception.
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`Stratos has not yet produced one category of documents it is aware of that may support its
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`conception date: archival e-mail records. But that is not because Stratos refuses to produce these
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`records, it is because Stratos is currently unable to do so. These email records are not recent
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`emails managed by a modern email system. Rather, as Stratos disclosed to Defendants in its
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`infringement contentions, Stratos is in possession of certain old, archival copies of e-mails that it
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`believes date from around the year 2000. As Stratos explained to Defendants in a subsequent
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`meet and confer, these e-mails records are stored on archival systems that are no longer in use,
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`and that are difficult to access and process for production. As a result, and despite Stratos’
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`diligent efforts to extract these email records, Plaintiff’s counsel currently does not have a copy
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`of these e-mail records in its possession. If Stratos is able to extract these records, counsel will
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`run keyword searches and produce any non-privileged search results. Stratos asked Defendants
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`to provide a list of the keywords they wanted Stratos to search, but Defendants refused. Stratos
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`also asked Defendants to confirm they would similarly run keyword searches on their own e-
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`mails, but Defendants refused. Despite Defendants’ lack of cooperation, Stratos will take
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`unilateral efforts to search and produce these e-mail records as soon as practically possible.
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`Stratos’ continuing effort to search and produce its archival e-mail records should not
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`delay Defendants’ preparation of their preliminary invalidity contentions, for two reasons. First,
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`Defendants have the full range of dates Stratos may claim for its invention date, and Defendants
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`have evidence corroborating those dates in the form of inventor notebooks. This means
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`Defendants have everything they need to evaluate the prior art and provide preliminary
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`contentions. Notably, Defendants have not identified any piece of prior art they are unable to
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 5 of 22
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`evaluate based on the current record. Second, this Court’s rules already contemplate that the
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`parties may supplement their contentions without leave based on material produced after
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`preliminary contentions are served, so there is no possible prejudice to Defendants. Indeed,
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`these e-mail records are no different from any other routine discovery parties take relating to
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`conception, such as depositions. Stratos does not read this Court’s rules as requiring all
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`conception-related discovery to take place prior to service of preliminary contentions.
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`Because Stratos has sufficiently disclosed its position to Defendants, Stratos respectfully
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`requests that the Court set July 1, 2021 as the deadline for preliminary invalidity contentions.
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`DEFENDANT’S POSITION
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`The only disputed date is the deadline for Defendants’ invalidity contentions, which
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`Defendants contend should be eight weeks after Plaintiff properly complies with the deadline for
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`Preliminary Infringement Contentions (“PICs”). Here, the Court’s Order Governing Proceedings
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`(“OGP”) required Plaintiff’s PICs (due May 13, 2021) to “identify the priority date (i.e. the
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`earliest date of invention) for each asserted claim and produce: (1) all documents evidencing
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`conception and reduction to practice for each claimed invention . . . .” OGP, ¶ 2 (emphasis
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`added). Plaintiff admittedly disregarded both requirements, which has caused significant
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`prejudice to Defendants’ ability to prepare invalidity contentions, as explained in further detail
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`below.
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`Setting aside Plaintiff’s disregard for the OGP, Plaintiff’s proposed deadline of July 1 for
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`invalidity contentions is unreasonable. The OGP contemplates that invalidity contentions are
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`due eight weeks after the deadline for PICs, which would be July 8 (Plaintiff’s calculation of
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`seven weeks is based on a model order in which PICs are due a week before the CMC, which did
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`not occur here). There is no cause to shorten the deadline, particularly because these cases
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 6 of 22
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`involve eight asserted patents, which will take a significant amount of time to find prior art for
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`and chart, especially given many sources of prior art (such as libraries that house old documents
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`from the 1990s) are closed due to the pandemic.
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`A. Plaintiff Failed To Identify Its Priority Dates
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`Plaintiff’s PICs state that the asserted claims for each of eight asserted patents “are
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`entitled to a priority date at least as early as” a given date—in other words, any date going back
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`to the beginning of time. Exhibit A (Prelim. Infr. Cont.) at 3 (emphasis added). This contention
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`is improper, and the “at least as early as” language should be struck. See, e.g., Fortinet, Inc. v.
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`Forescout Techs., Inc., No. 20-03343, 2021 U.S. Dist. LEXIS 85293, at *11 (N.D. Cal. May 4,
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`2021) (striking improper “at least” language from infringement contentions).
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`When HMA requested Plaintiff drop the “at least as early as” qualifier, Plaintiff instead
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`emailed a vague and untimely new contention—that “the earliest date by which StratosAudio
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`believes it conceived of at least some of the elements claimed in the asserted patents is
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`November 19, 1999.” Ex. B at 3 (emphasis added). Plaintiff, however, did not amend its PICs to
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`add this new contention, and cannot satisfy the standard to amend, which only allows
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`amendment if it “is based on material identified after those preliminary contentions were
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`served.” OGP at 7. Here, the underlying information was previously in Plaintiff’s possession
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`(the inventors are officers of Plaintiff and the relevant information has always been within
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`Plaintiff’s possession). Additionally, this new contention is irrelevant because it is not on a
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`claim-by-claim basis and is not an “earliest date of invention,” as explicitly required by the OGP.
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`OGP, ¶ 2. “Invention” requires conception of all elements of a claim, not merely “some of the
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`elements” in some unspecified patents. Judkins v. HT Window Fashions Corp., 624 F. Supp. 2d
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`427, 435 (W.D. Penn. May 18, 2009) (“A patent holder may establish an earlier date of invention
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 7 of 22
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`by proving ‘either an earlier reduction to practice, or an earlier conception followed by a diligent
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`reduction to practice.’ . . . Conception must include every feature or limitation of the claimed
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`invention . . . .”). Plaintiff’s attempt to redefine the settled meaning of “invention” should not be
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`credited.
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`On the meet and confer, HMA also inquired whether Plaintiff’s untimely and improper
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`November, 1999 contention has a reasonable basis. For example, Plaintiff contended in its PICs
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`that the ’405 Patent is entitled to a priority date of February 5, 2008, a date that appears to be
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`based on the filing date of an underlying provisional application (a date of constructive reduction
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`to practice). HMA inquired whether Plaintiff had a reasonable basis to swear back nine years
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`(i.e., a basis to believe that every element of every asserted claim was conceived of nine years
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`before the provisional application was filed), but Plaintiff refused to answer the question, and
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`instead repeated the vague and irrelevant contention it had sent via email, and said its experts are
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`still investigating this issue. Thus, Plaintiff has no basis to allege an earlier “invention” date for
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`any patents. For example, the purported November, 1999 date does not constitute notice of
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`anything for the patents with an earliest effective filing date of 2008. In essence, Plaintiff seeks
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`to trap defendants by selecting a random, early date in an effort to reserve its right to claim any
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`invention date it wants later in the case. The Court should not sanction this plain attempt to
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`circumvent the notice requirement in the Court’s OGP. The Court should strike Plaintiff’s “at
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`least as early as” qualifier and hold Plaintiff to the dates in its PICs.
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`B. Plaintiff Failed To Produce Conception And Reduction To Practice Documents
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`Plaintiff admittedly withheld documents related to conception and reduction to practice.
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`Plaintiff’s PICs stated that “email correspondences relating to the priority of the Asserted Patents
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`are available for production pending the entry of a Protective Order and Discovery Order to be
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 8 of 22
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`negotiated by the parties.” Ex. A at 3–4. HMA sent a letter explaining that this excuse was
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`improper as the OGP already includes a Protective Order and a discovery order is unnecessary.
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`Plaintiff then changed its story and said it would produce a limited set of documents if
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`Defendants provided search terms, stating:
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`“our client has certain e-mails that we are willing to search. If any Defendant
`wishes for us to conduct e-mail searches, we ask that you please (1) provide a list
`of the search terms you would like us to run, and (2) confirm you will run e-mail
`searches for terms we provide against your clients’ e-mail collections. In the
`alternative, we would be willing to postpone e-mail discovery until after
`Markman, at which time we can negotiate an appropriate ESI Order.”
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`Ex. B at 3. This excuse is nonsensical—Defendants would not be able to craft search terms that
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`would uncover which documents Plaintiff intends to rely upon, and Defendants have no interest
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`in obtaining Plaintiff’s conception or reduction to practice documents at this time if Plaintiff will
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`not rely on them. And, it is inappropriate for Plaintiff to demand Defendants produce emails, as
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`fact discovery has not opened. In an effort to compromise, HMA proposed during the meet and
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`confer that Plaintiff could forgo production of any further conception/RTP documents, if it
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`would agree not to rely upon them to prove conception or reduction to practice. But Plaintiff
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`refused that offer, and stated that it reserves the right to rely on the non-produced emails to show
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`conception and reduction to practice.
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`On the meet and confer, Plaintiff also changed its story further, and stated that production
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`was delayed because Plaintiff’s counsel did not have the documents, they are archival and
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`difficult to access, and Plaintiff needed expert assistance to review them. These final excuses are
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`also insufficient because they simply highlight that Plaintiff can access the documents and
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`produce them, it simply failed to be diligent in preparing for the deadline. Plaintiff had over five
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`months since it filed this case to prepare to comply with the Court’s deadline, and it offers no
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`explanation for why it could not exercise diligence before the deadline as opposed to after. The
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 9 of 22
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`documents have always been in Plaintiff’s possession, and the inventors (officers of the Plaintiff)
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`can identify their own documents related to their own conception (no expert assistance is
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`needed).
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`Plaintiff also incorrectly implies that it “produced over 100,000 pages of documents”
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`related to conception or reduction to practice. To clarify, almost all of those pages are manuals
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`for the accused products that Plaintiff pulled from Defendants’ websites. Plaintiff produced 946
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`separate PDFs and, based on Defendants’ preliminary review, twelve of them may be related to
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`conception and reduction to practice. All of the other documents appear to be Defendants’
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`product manuals, prosecution documents, and multiple duplicative copies of each asserted patent.
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`It is clear that Plaintiff has exercised no reasonable diligence in preparing to produce
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`documents—even given effectively unlimited time to prepare—and now would like the Court to
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`sanction an indefinite delay while Plaintiff reviews its own documents. Fundamentally, it is
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`unreasonable for Plaintiff to argue that its failure to prepare to comply with the Court’s deadline
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`excuses compliance with the deadline.
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`C. Defendants Are Prejudiced By Plaintiff’s Failure
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`Plaintiff’s failure to provide proper PICs on the deadline is highly prejudicial to
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`Defendants. Defendants must have Plaintiff’s invention date contentions and corroborating
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`documentation in order to prepare their invalidity contentions. Judkin, 624 F. Supp. 2d at 433
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`(“The date of invention is of fundamental importance in determining whether asserted prior art
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`references in fact qualify as prior art, making them capable of invalidating a patent.”). Allowing
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`parties to ignore the Court’s deadlines at will would sanction the shifting sands approach to
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`patent litigation that the local rules are designed to prevent. Ilife Techs., Inc. v. Nintendo of Am.,
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`Inc., No. 13-4987, 2017 U.S. Dist. LEXIS 87769, at *61–62 (N.D. Tex. May 30, 2017)
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 10 of 22
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`(explaining “the purpose of [the local patent rules] is to require parties to crystallize their
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`theories of the case early in the litigation so as to prevent the shifting sands approach to claim
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`construction.” (citations and quotations omitted)). Plaintiff should not be allowed to sandbag
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`Defendants with new priority dates and new conception/RTP documents whenever it chooses,
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`especially where there is a clear lack of diligence and all of the relevant evidence has been in
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`Plaintiff’s possession since the evidence came into existence. Thus, Defendants respectfully
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`request the Court enforce its rules and thereby afford Defendants a reasonable opportunity to
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`prepare invalidity defenses that it can rely upon in this case.
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`Plaintiff argues that its disregard for the Court’s deadline causes no prejudice because it
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`purportedly disclosed “the full range of dates Plaintiff may claim for its invention date.” To the
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`contrary, as explained above, (1) Plaintiff’s infringement contentions have not been amended to
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`state the purported invention date, (2) the date provided is not actually an invention date, nor is it
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`on a claim-by-claim basis, and (3) Plaintiff has no basis for the date—it was essentially chosen at
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`random in an effort to trap Defendants while disclosing no useful information. Plaintiff also
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`argues there is no prejudice because Defendants “have evidence corroborating” Plaintiff’s
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`invention date. This argument is irrelevant, as Plaintiff confirmed in writing that it withheld
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`documents that it may seek to rely upon to prove conception or reduction to practice (and again,
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`the purported invention date is not an invention date).
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`Plaintiff further argues that Defendants “have everything they need” to draft invalidity
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`contentions, and have not “identified any piece of prior art they are unable to evaluate.” But this
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`argument misses the point. As explained above, “[t]he date of invention is of fundamental
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`importance in determining whether asserted prior art references in fact qualify as prior art,
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`making them capable of invalidating a patent.” Judkin, 624 F. Supp. 2d at 433. Defendants
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 11 of 22
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`cannot know whether their prior art predates each of the eight asserted patents (many of which
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`are unrelated), given Plaintiff has not disclosed its alleged priority dates. And even if Plaintiff’s
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`“at least as early as” language is struck and it is held to the dates in its PICs, Plaintiff apparently
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`intends to produce conception and reduction to practice documents at a later date, and may
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`attempt to use those documents to support the existing dates in its PICs. Defendants must be
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`afforded an opportunity to review those documents now and assess the credibility of Plaintiff’s
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`contentions, in order to prepare invalidity defenses for trial that it can count on.
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`Plaintiff also argues it can amend without leave “based on material produced after
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`preliminary contentions are served.” Defendants understand the rule differently—amendment is
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`only allowed if it is based on material that was not in the party’s possession as of the original
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`deadline. Here, there is no dispute that all of the relevant material is in Plaintiff’s possession.
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`Plaintiff finally argues that the Court does not require “all conception-related discovery to take
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`place prior to service of preliminary contentions.” (emphasis original). But the Court explicitly
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`requires production of “all documents evidencing conception and reduction to practice for each
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`claimed invention” and the “earliest date of invention” be provided for all asserted claims. OGP,
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`¶ 2 (emphasis added).
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`In sum, Defendants request the Court (1) strike the phrase “at least as early as” from
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`Plaintiff’s PICs (Exhibit A) cover pleading (highlighted on page 3), (2) compel production of
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`conception and reduction to practice documents that Plaintiff withheld (highlighted on pages 3–
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`4), to the extent that Plaintiff plans to rely upon them to prove conception or reduction to
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`practice, and (3) set Defendants’ invalidity contentions to be due eight weeks after Plaintiff
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`confirms it has completed production of those documents (which should be no earlier than July
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`8, 2021).
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 12 of 22
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`EX. 1 - PLAINTIFF’S PROPOSED CASE SCHEDULE
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`Date
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`Event
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`May 13, 2021
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`May 27, 2021
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`July 1, 2021
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`Plaintiff shall serve preliminary3 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 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.
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`The Parties shall submit an agreed Scheduling Order . If the parties
`cannot agree, the parties shall submit a separate Joint Motion for entry
`of each 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.
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`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 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, (2) technical documents, including software
`where applicable, sufficient to show the operation of the accused
`product(s), and (3) summary, annual sales information for the accused
`product(s) for the two years preceding the filing of the Complaint,
`unless the parties agree to some other timeframe.
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`July 15, 2021
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`Parties exchange claim terms for construction.
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`July 29, 2021
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`Parties exchange proposed claim constructions.
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`August 4th, 2021
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`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
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`3 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.
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`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 13 of 22
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`Date
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`Event
`of the topics for the witness’s expected testimony.4 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.
`Plaintiff files Opening claim construction brief, including any
`arguments that any claim terms are not indefinite.
`September 2, 2021 Defendant files Responsive claim construction brief.
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`August 6, 2021
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`August 12, 2021
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`September 13, 2021 Plaintiff files Reply claim construction brief
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`October 4, 2021
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`October 5, 2021
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`April 4, 2022
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`September 24, 2021 Defendant files a Sur-Reply claim construction brief.
`September 24, 2021 Parties submit optional technical tutorials to the Court and technical
`adviser (if appointed).5
`September 28, 2021 Parties submit Joint Claim Construction Statement.
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`See General Issues Note #9 regarding providing copies of the briefing to
`the Court and the technical adviser (if appointed).
`Date of Markman hearing. 9:30 a.m. – 11:00 a.m.
`Fact Discovery opens; deadline to serve Initial Disclosures per Rule
`26(a)
`November 15, 2021 Deadline to add parties.
`November 29, 2021 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.
`January 24, 2022 Deadline to amend pleadings. A motion is not required unless the
`amendment adds patents or patent claims. (Note: This includes
`amendments in response to a 12(c) motion.)
`Deadline for the first of two meet and confers to discuss significantly
`narrowing the number of claims asserted and prior art references at
`issue. Unless the parties agree to the narrowing, they are ordered to
`
`4 Any party may utilize a rebuttal expert in response to a brief where expert testimony is relied upon by the other
`party.
`5 The parties should contact the law clerk to request a Box link so that the party can directly upload the file to the
`Court’s Box account.
`
`
`
`
`
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`

`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 14 of 22
`
`
`
`Date
`
`May 2, 2022
`
`Event
`contact the Court’s Law Clerk to arrange a teleconference with the
`Court to resolve the disputed issues.
`Close of Fact Discovery.
`
`May 9, 2022
`
`Opening Expert Reports.
`
`June 6, 2022
`
`Rebuttal Expert Reports.
`
`June 27, 2022
`
`July 5, 2022
`
`July 11, 2022
`
`Close of Expert Discovery.
`Deadline for the second of two meet and confer to discuss narrowing
`the number of claims asserted and prior art references at issue to triable
`limits. To the extent it helps the parties determine these limits, the
`parties are encouraged to contact the Court’s Law Clerk for an estimate
`of the amount of trial time anticipated per side. The parties shall file a
`Joint Report within 5 business days regarding the results of the meet
`and confer.
`Dispositive motion deadline and Daubert motion deadline.
`See General Issues Note #9 regarding providing copies of the briefing
`to the Court and the technical adviser (if appointed).
`Serve Pretrial Disclosures (jury instructions, exhibits lists, witness lists,
`discovery and deposition designations).
`Serve objections to pretrial disclosures/rebuttal disclosures.
`Serve objections to rebuttal disclosures and File Motions in limine.
`
`File Joint Pretrial Order and Pretrial Submissions (jury instructions,
`exhibits lists, witness lists, discovery and deposition designations); file
`oppositions to motions in limine.
`File Notice of Request for Daily Transcript or Real Time Reporting. If
`a daily transcript or real time reporting of court proceedings is
`requested for trial, the party or parties making said request shall file a
`notice with the Court and e-mail the Court Reporter, Kristie Davis at
`kmdaviscsr@yahoo.com
`Deadline to meet and confer regarding remaining objections and
`disputes on motions in limine.
`September 7, 2022 File joint notice identifying remaining objections to pretrial disclosures
`and disputes on motions in limine.
`September 12, 2022 Final Pretrial Conference. The Court expects to set this date at the
`conclusion of the Markman Hearing.
`
`July 25, 2022
`
`August 8, 2022
`
`August 15, 2002
`
`August 22, 2022
`
`August 29, 2022
`
`
`
`
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`

`

`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 15 of 22
`
`
`
`
`
`Date
`
`October 3, 20226
`
`
`
`
`Event
`Jury Selection/Trial. The Court expects to set these dates at the
`conclusion of the Markman Hearing.
`
`
`
`
`6 If the actual trial date materially differs from the Court’s default schedule, the Court will consider reasonable
`amendments to the case schedule post-Markman that are consistent with the Court’s default deadlines in light of the
`actual trial date.
`
`
`
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`

`Case 6:20-cv-01131-ADA Document 29 Filed 05/27/21 Page 16 of 22
`
`
`
`EX. 2 - DEFENDANTS’ PROPOSED CASE SCHEDULE
`
`Date
`
`Event
`
`Plaintiff shall serve preliminary7 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 priority
`date (i.e. the earliest date of invention) for each asserted claim and
`produce: (1) all documents evidencing conception and reduction to
`practice for each claimed invention, and (2) a copy of the file history
`for each patent in suit.
`
`The Parties shall submit an agreed Scheduling Order . If the parties
`cannot agree, the parties shall submit a separate Joint Motion for entry
`of each 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 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 section 112, and (3) an identification of any claims
`the Defendant contends are directed to ineligible subject matter under