Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 1 of 6
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC
`
`Defendant.
`
`Civil Action No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`PROPOSED SCHEDULING ORDER
`
`DEADLINE
`
`ITEM
`
`August 27, 2021
`(Friday)
`7 days before CMC
`
`September 17, 2021
`(Friday)
`2 weeks after CMC
`
`Plaintiff serves preliminary infringement1 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 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.
`
`1 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.
`
`

`

`Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 2 of 6
`
`October 22, 2021
`(Friday)
`7 weeks after CMC
`
`November 4, 2021
`(Thursday)
`~9 weeks after CMC
`
`November 18, 2021
`(Thursday)
`~11 weeks after CMC
`
`December 2, 2021
`(Thursday)
`~12 weeks after CMC
`
`December 9, 2021
`(Thursday)
`~13 weeks after CMC
`
`December 16, 2021
`(Thursday)
`~14 weeks after CMC
`
`January 6, 2022
`(Thursday)
`~17 weeks after CMC
`
`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).
`
`Parties exchange claim terms for construction.
`
`Parties exchange proposed claim constructions.
`
`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.2
`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.
`
`Plaintiff files Responsive claim construction brief.
`
`2 Any party may utilize a rebuttal expert in response to a brief where expert testimony is
`relied upon by the other party.
`
`

`

`Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 3 of 6
`
`January 20, 2022
`(Thursday)
`~19 weeks after CMC
`
`February 3, 2022
`(Thursday)
`~21 weeks after CMC
`
`February 8, 2022
`(Tuesday)
`3 business days after
`submission of sur-reply
`
`February 8, 2022
`(Tuesday)
`22 weeks after CMC (but
`at least 10 days before
`Markman hearing)
`
`February 18, 2022
`(Friday)
`23 weeks after CMC (or as
`soon as practicable)
`
`February 21, 2022
`(Monday)
`1 business day after
`Markman hearing
`
`March 31, 2022
`(Thursday)
`~6 weeks after Markman
`hearing
`
`April 14, 2022
`(Thursday)
`
`Defendant files Reply claim construction brief.
`
`Plaintiff files a Sur-Reply claim construction brief.
`
`Parties submit Joint Claim Construction Statement.
`See General Issues Note #9 regarding providing copies of the
`briefing to the Court and the technical adviser (if appointed).
`
`Parties submit optional technical tutorials to the Court and
`technical adviser (if appointed).3
`
`Markman Hearing at 9:00 a.m. This date is a placeholder and the
`Court may adjust this date as the Markman hearing approaches.
`
`Fact Discovery opens; deadline to serve Initial Disclosures per
`Rule 26(a).
`
`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
`
`3 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.
`
`

`

`Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 4 of 6
`
`~8 weeks after Markman
`hearing
`
`relieve the Parties of their obligation to seasonably amend if new
`information is identified after initial contentions.
`
`June 9, 2022
`(Thursday)
`~16 weeks after Markman
`hearing
`
`August 11, 2022
`(Thursday)
`~26 weeks after Markman
`hearing
`
`September 8, 2022
`(Thursday)
`~30 weeks after Markman
`hearing
`
`September 15, 2022
`(Thursday)
`~31 weeks after Markman
`hearing
`
`October 13, 2022
`(Thursday)
`~35 weeks after Markman
`hearing
`
`November 3, 2022
`(Thursday)
`~38 weeks after Markman
`hearing
`
`November 10, 2022
`(Thursday)
`~39 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.)
`
`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 Reports.
`
`Rebuttal Expert Reports.
`
`Close of Expert Discovery.
`
`Deadline for the second of two meet and confers 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.
`
`November 17, 2022
`
`Dispositive motion deadline and Daubert motion deadline.
`
`

`

`Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 5 of 6
`
`(Thursday)
`~40 weeks after Markman
`hearing
`
`December 1, 2022
`(Thursday)
`~42 weeks after Markman
`hearing
`
`December 15, 2022
`(Thursday)
`~44 weeks after Markman
`hearing
`
`December 22, 2022
`(Thursday)
`~45 weeks after Markman
`hearing
`
`December 29, 2022
`(Thursday)
`~46 weeks after Markman
`hearing
`
`January 5, 2023
`(Thursday)
`~47 weeks after Markman
`hearing
`
`January 17, 2023
`(Tuesday)
`3 business days before
`Final Pretrial Conference
`
`January 20, 2023
`(Friday)
`
`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.
`
`File joint notice identifying remaining objections to pretrial
`disclosures and disputes on motions in limine.
`
`Final Pretrial Conference. The Court expects to set this date at the
`conclusion of the Markman Hearing.
`
`

`

`Case 6:21-cv-00569-ADA Document 21 Filed 09/21/21 Page 6 of 6
`
`~49 weeks after Markman
`hearing (or as soon as
`practicable)
`
`February 10, 2023
`(Friday)
`52 weeks after Markman
`hearing (or as soon as
`practicable)4
`
`Jury Selection/Trial. The Court expects to set these dates at the
`conclusion of the Markman Hearing.
`
` SIGNED this 21st day of September, 2021
`
`ALAN ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`4 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.
`
`