Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 1 of 15 PageID #: 600
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`
`BIOGEN INTERNATIONAL GMBH and
`BIOGEN MA, INC.,
`Plaintiff,
`
`v.
`
`MYLAN PHARMACEUTICALS, INC.,
`Defendant.
`
`CIVIL ACTION NO. 1:17cv116
`(Judge Keeley)
`
`SCHEDULING ORDER
`
`On October 18, 2017, the parties filed their meeting report
`and proposed discovery plan. On November 1, 2017, the Court
`conducted a scheduling conference in this matter and, pursuant to
`Fed. R. Civ. P. 16(b), Fed. R. Civ. P. 26(f) and the Local Rules of
`Civil Procedure, as amended on July 20, 2010, ORDERS that the
`following table of dates and deadlines shall govern the further
`preparation of this case1:
`
`TABLE OF DATES AND DEADLINES
`INITIAL DISCOVERY DISCLOSURES
`November 17, 2017
`PLAINTIFF JOIN PARTIES
`April 2, 2018
`PLAINTIFF AMEND PLEADINGS
`July 6, 2018
`DEFENDANT JOIN PARTIES
`April 2, 2018
`
`As noted in this Court’s First Order and Notice Regarding
`1
`Discovery and Scheduling, the report is considered advisory only.
`Accordingly, this Court adopts the proposed discovery plan of the
`parties only to the extent noted.
`
`Page 1 of 15
`
`Biogen Exhibit 2014
`Mylan v. Biogen
`IPR2018-01403
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`
`BIOGEN INTERNATIONAL GMBH and
`BIOGEN MA, INC.,
`Plaintiff,
`
`v.
`
`MYLAN PHARMACEUTICALS, INC.,
`Defendant.
`
`CIVIL ACTION NO. 1:17cv116
`(Judge Keeley)
`
`SCHEDULING ORDER
`
`On October 18, 2017, the parties filed their meeting report
`and proposed discovery plan. On November 1, 2017, the Court
`conducted a scheduling conference in this matter and, pursuant to
`Fed. R. Civ. P. 16(b), Fed. R. Civ. P. 26(f) and the Local Rules of
`Civil Procedure, as amended on July 20, 2010, ORDERS that the
`following table of dates and deadlines shall govern the further
`preparation of this case1:
`
`TABLE OF DATES AND DEADLINES
`INITIAL DISCOVERY DISCLOSURES
`November 17, 2017
`PLAINTIFF JOIN PARTIES
`April 2, 2018
`PLAINTIFF AMEND PLEADINGS
`July 6, 2018
`DEFENDANT JOIN PARTIES
`April 2, 2018
`
`As noted in this Court’s First Order and Notice Regarding
`1
`Discovery and Scheduling, the report is considered advisory only.
`Accordingly, this Court adopts the proposed discovery plan of the
`parties only to the extent noted.
`
`Page 1 of 15
`
`Biogen Exhibit 2014
`Mylan v. Biogen
`IPR2018-01403
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 2 of 15 PageID #: 601
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`DEFENDANT AMEND PLEADINGS
`JOINT PROTECTIVE ORDER
`PLAINTIFFS IDENTIFY ACCUSED PRODUCTS AND
`ASSERTED PATENT(S) THEY ALLEGEDLY
`INFRINGED
`DEFENDANT PRODUCE RELEVANT CORE
`TECHNICAL DOCUMENTS RELATED TO THE
`ACCUSED PRODUCTS
`PLAINTIFFS DISCLOSE INITIAL INFRINGEMENT
`CONTENTION CLAIM CHARTS
`DEFENDANT DISCLOSE INITIAL INVALIDITY
`CONTENTIONS AND RELATED DISCLOSURES
`LAST DATE TO SERVE REQUESTS FOR
`PRODUCTION TO BE GOVERNED BY SUBSTANTIAL
`COMPLETION DEADLINE
`SUBSTANTIAL COMPLETION OF DOCUMENT
`PRODUCTION
`OPENING EXPERT REPORTS
`REBUTTAL EXPERT REPORTS
`REPLY EXPERT REPORTS
`COMPLETION OF EXPERT DISCOVERY
`DAUBERT MOTIONS
`DAUBERT RESPONSE
`COMPLETION OF FACT DISCOVERY
`MARKMAN EVENTS
`PARTIES EXCHANGE LIST OF CLAIM
`TERM(S)/PHRASE(S) THAT PARTIES
`BELIEVE NEED CONSTRUCTION
`
`July 6, 2018
`November 30, 2017
`December 1, 2017
`
`January 10, 2018
`
`February 28, 2018
`
`March 30, 2018
`
`April 30, 2018
`
`July 30, 2018
`
`November 27, 2018
`January 4, 2019
`January 18, 2019
`March 22, 2019
`April 12, 2019
`May 10, 2019
`October 1, 2018
`
`January 22, 2018
`
`2
`
`Page 2 of 15
`
`
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`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 3 of 15 PageID #: 602
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`PARTIES EXCHANGE LIST OF PROPOSED
`CLAIM CONSTRUCTIONS OF
`TERM(S)/PHRASE(S) ON PARTIES'
`EXCHANGE LISTS
`JOINT CLAIM CHART
`OPENING MARKMAN BRIEFS
`RESPONSE MARKMAN BRIEFS
`MARKMAN HEARING
`
`DEADLINE FOR PARTIES TO SUPPLEMENT
`IDENTIFICATION OF ALL ACCUSED
`PRODUCTS AND OF ALL INVALIDITY
`CONTENTIONS
`DISPOSITIVE MOTIONS
`RESPONSE TO DISPOSITIVE MOTIONS
`REPLY TO DISPOSITIVE MOTIONS
`PRETRIAL MEMORANDA
`PLAINTIFF'S FINAL LIST OF WITNESSES AND
`EXHIBITS
`DEFENDANT'S FINAL LIST OF WITNESSES AND
`EXHIBITS
`OBJECTIONS TO FINAL LIST OF WITNESSES
`AND EXHIBITS
`PLAINTIFF'S INTERROGATORIES AND
`DEPOSITIONS TO BE USED AT TRIAL
`DEFENDANT'S INTERROGATORIES AND
`DEPOSITIONS TO BE USED AT TRIAL
`OBJECTIONS TO INTERROGATORIES AND
`DEPOSITIONS
`STIPULATION OF FACTS
`
`3
`
`February 6, 2018
`
`February 26, 2018
`March 26, 2018
`April 16, 2018
`May 11, 2018
`9:30 a.m.
`(3 hours reserved)
`September 27, 2019
`
`August 19, 2019
`September 19, 2019
`October 3, 2019
`January 15, 2020
`January 9, 2020
`
`January 9, 2020
`
`January 16, 2020
`
`January 9, 2020
`
`January 9, 2020
`
`January 16, 2020
`
`January 16, 2020
`
`Page 3 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 4 of 15 PageID #: 603
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`PROPOSED EXPERT WITNESS BIOGRAPHICAL
`SKETCHES
`DESIGNATION OF JOINT EXHIBITS
`PRETRIAL CONFERENCE/FINAL SETTLEMENT
`CONFERENCE
`TRIAL DATE
`
`January 16, 2020
`
`January 16, 2020
`January 23, 2020
`10:00 a.m.
`February 3, 2020
`9:00 a.m. (first)
`(7 days)
`
`INITIAL DISCOVERY DISCLOSURES: Pursuant to the parties’
`1.
`request at the scheduling conference, each party shall provide to
`every other party the initial discovery disclosures required under
`Fed. R. Civ. P. 26(a)(1), on or before November 17, 2017.
`JOINDER AND AMENDMENTS: Motions to join additional
`2.
`parties by the plaintiff shall be filed by April 2, 2018. Motions
`to amend pleadings, as well as any similar motions, by the
`plaintiff shall be filed by July 6, 2018. Motions to join
`additional parties by the defendant shall be filed by April 2,
`2018. Motions to amend pleadings, as well as any similar motions,
`by the defendant shall be filed by July 6, 2018.
`INITIAL CONTENTIONS: The plaintiffs shall identify the
`3.
`accused products and asserted patent(s) allegedly infringed by
`December 1, 2017. Defendant shall produce the relevant core
`
`4
`
`Page 4 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 5 of 15 PageID #: 604
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`technical documents related to the accused products by January 10,
`2018. Plaintiffs shall disclose their initial infringement
`contention claim charts by February 28, 2018. Defendant shall
`disclose its initial invalidity contentions and related disclosures
`by March 30, 2018.
`PROTECTIVE ORDER: The parties shall submit their joint
`4.
`proposed protective order to the Court by no later than November
`30, 2017.
`PRODUCTION OF DOCUMENTS: The parties shall serve all
`5.
`requests for production of documents to be governed by the
`substantial completion deadline, no later than April 30, 2018. The
`deadline for substantial completion of document production is July
`30, 2018.
`EXPERT REPORTS: Opening expert reports, as required by
`6.
`Fed. R. Civ. P. 26(B), on issues for which the party bears the
`burden of proof for that issue shall be made to all other parties,
`or their counsel, no later than November 27, 2018. All rebuttal
`expert reports shall be made to all other parties, or their
`counsel, by no later than January 4, 2019. All reply expert
`reports shall be made to all other parties, or their counsel, no
`later than January 18, 2019.
`
`5
`
`Page 5 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 6 of 15 PageID #: 605
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`The disclosures described in Fed. R. Civ. P. 26(a)(2)(B) shall
`not be required of physicians and other medical providers who
`examined or treated a party or party’s decedent unless the
`physicians or medical providers will render an expert opinion in
`the case.
`DAUBERT MOTIONS, RESPONSE: Daubert motions shall be
`7.
`filed by April 12, 2019. Any such motions must be supported by a
`memorandum at the time the motion is filed with the Clerk. Response
`to such motions shall be delivered to the Clerk with copies served
`upon opposing counsel on or before May 10, 2019. No reply to the
`response shall be filed. If necessary, a hearing on Daubert
`motions will be set by separate order of the Court.
`8. FACT AND EXPERT DISCOVERY: All fact discovery shall be
`completed by October 1, 2018. All expert discovery shall be
`completed by March 22, 2019. "Completed discovery" as used in Fed.
`R. Civ. P. 16(b) means that, within the time limits set, all
`discovery, objections, motions to compel, and all other motions and
`replies relating to discovery in this civil action have been filed
`and the party objecting or responding has had sufficient time under
`the Federal Rules of Civil Procedure to make responses. The term
`"all discovery" in the preceding definition of "completed
`
`6
`
`Page 6 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 7 of 15 PageID #: 606
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`discovery" includes the disclosures required by Fed. R. Civ. P.
`26(a)(1) and (2), but does not include the disclosures required by
`Fed. R. Civ. P. 26(a)(3).
`Parties have a continuing obligation to supplement their
`responses beyond the discovery cut-off date, as provided in Fed. R.
`Civ. P. 26(e). The parties should refer to L.R. Civ. P. 5.01, L.R.
`Civ. P. 26.01 -26.04, L.R. Civ. P. 33.01, L.R. Civ. P. 34.01, L.R.
`Civ. P. 36.01, and L.R. Civ. P. 37.01 - 37.02 for further
`instructions on discovery practice.
`The conduct of any discovery which would require a later time
`limit shall be permitted only on the order of the Court or by filed
`stipulation of the parties, and only in cases that will not be
`delayed for trial thereby.2 The parties should be aware that a
`stipulation to the continuance of discovery anticipates no
`discovery disputes and, therefore, this Court will not hear
`discovery disputes arising during the stipulated continuance.
`
`Extension of the discovery deadline does not change the
`2
`other deadlines set forth herein nor shall it be a basis for
`seeking extension of those deadlines. In particular, the deadline
`for dispositive motions generally cannot be changed without
`affecting the trial date. In considering to extend discovery, the
`parties should give thought as to any possible impact on
`contemplated dispositive motions.
`
`7
`
`Page 7 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 8 of 15 PageID #: 607
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`LIMITATIONS ON DISCOVERY: The preemptive limitations on
`9.
`discovery (numbers of interrogatories, requests for admission, and
`depositions) set out in L.R. Civ. P. 26.01(c) apply to this case
`unless otherwise stipulated or ordered.
`10. CLAIM CONSTRUCTION ISSUE IDENTIFICATION: On or before
`January 22, 2018, the parties shall exchange a list of those claim
`term(s)/phrase(s) that they believe will likely be disputed and
`require construction. On or before, February 6, 2018, the parties
`shall exchange their proposed claim construction of those
`term(s)/phrase(s). The parties will meet and confer and prepare a
`Joint Claim Construction Chart to be filed no later than February
`26, 2018.
`11. CLAIM CONSTRUCTION BRIEFING / HEARING: The parties shall
`file their opening brief on or before March 26, 2018. Responsive
`briefs shall be filed on or before April 16, 2018. A hearing on
`claim construction will be held on May 11, 2018, at 9:30 a.m., at
`the Clarksburg, West Virginia, point of holding court. The parties
`shall supplement their identification of all accused products and
`all invalidity contentions no later than September 27, 2019.
`DISPOSITIVE MOTIONS: All dispositive motions, as well as
`12.
`deposition transcripts, admissions, documents, affidavits, and any
`
`8
`
`Page 8 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 9 of 15 PageID #: 608
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`other such matters in support thereof, shall be filed by August 19,
`2019. Unless parties have obtained an early briefing schedule from
`the Court, all dispositive motions should be filed after the close
`of discovery.
`Any such motion must be supported by a memorandum at the time
`the motion is filed with the Clerk. Memoranda in opposition to
`such motions shall be delivered to the Clerk with copies served
`upon opposing counsel on or before September 19, 2019. Any reply
`memoranda shall be delivered to the Clerk with copies served upon
`opposing counsel on or before October 3, 2019. All dispositive
`motions unsupported by memoranda will be denied without prejudice.
`See L.R. Civ. P. 7.02(a).
`Factual assertions made in memoranda should be supported by
`specific references to affidavits, depositions or other documents
`made a part of the record before the Court. Copies of the
`supporting documents, or relevant portions thereof, should be
`appended to the memoranda. The parties may refer to L.R. Civ. P.
`7.02, L.R. Civ. P. 12.02 and L.R. Civ. P. 78.01 for details on
`motion practice before this Court.
`PRETRIAL MEMORANDA: A pretrial memorandum shall be
`13.
`submitted to the Court not later than January 15, 2020. The
`
`9
`
`Page 9 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 10 of 15 PageID #: 609
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`B.
`
`pretrial memorandum shall contain at least those matters provided
`for under L.R. Civ. P. 16.04(b).
`The pretrial memorandum shall contain for each party, a list
`of all witnesses who will be called at the trial:
`A.
`Each list of witnesses should include the
`witnesses' addresses and a statement of the general
`subject matter of their testimony. It is NOT
`sufficient to designate the witness simply "fact,"
`"medical," or "expert." The list must also include
`an indication in good faith of those witnesses who
`WILL be called in the absence of reasonable notice
`to opposing counsel to the contrary and of those
`witnesses who MAY be called.
`This restriction does not apply to rebuttal
`witnesses or documents when necessity cannot be
`reasonably anticipated. Furthermore, in the case of
`expert witnesses, counsel shall certify that they
`have exchanged expert reports or have otherwise
`exchanged expert information. Expert witnesses
`whose reports have not been furnished to opposing
`counsel will not be permitted to testify nor shall
`experts be permitted to testify to opinions not
`included in the reports timely furnished.
`Except for good cause shown, the Court will not
`permit any witness to testify unless with respect
`to such witness there has been complete compliance
`with all provisions of this Order and prior court
`orders.
`The witness lists submitted to this Court as part of the pre-
`trial memorandum shall include all of a party's potential witnesses
`and exhibits and no party shall be permitted to add to these lists
`after the pretrial memorandum is submitted to the Court. Following
`
`C.
`
`10
`
`Page 10 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 11 of 15 PageID #: 610
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`the pretrial conference, this Court shall enter the final pretrial
`order which shall be modified only to prevent manifest injustice.
`14. FINAL LIST OF WITNESSES AND EXHIBITS AND OBJECTIONS:
`Pursuant to Fed. R. Civ. P. 26(a)(3), on or before January 9, 2020,
`plaintiff shall file with the Clerk a final list of those exhibits
`and witnesses that he or she actually intends to use or call at
`trial. Prior to that, he shall either forward copies of the
`proposed exhibits or make them available to all other counsel for
`examination. On or before January 9, 2020 defendant shall file a
`list of proposed exhibits to be used and witnesses to be called at
`trial after having forwarded copies of them or having them
`available for examination to all other counsel. All exhibits shall
`be appropriately marked in numerical sequence (not lettered).
`Exhibit markers may be obtained from the Clerk.
`By each of the dates set forth above, each counsel shall
`tender to the Clerk two sets (preferably in binders and on disk) of
`copies of the exhibits to be used at trial. These should be indexed
`for easy reference and each paper exhibit should be individually
`tabbed. One of the binders will be for the Court’s use and the
`other is for use by the witness. Counsel should have their own
`copy of each exhibit and should furnish opposing counsel with a
`
`11
`
`Page 11 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 12 of 15 PageID #: 611
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`copy of each exhibit. Original exhibits shall be submitted to the
`Clerk at trial and should not be tendered to the Clerk prior to
`trial.
`Any objection to any proposed witness or exhibit must be filed
`in writing no later than January 16, 2020, shall include a copy of
`the exhibit where possible, and shall include authority supporting
`the ground for objection. Failure to comply with this paragraph may
`constitute a waiver of objection or may result in the Court’s
`denying any objection to the admission of an affected exhibit or
`witness.
`INTERROGATORIES AND DEPOSITIONS TO BE USED AT TRIAL AND
`15.
`OBJECTIONS: Pursuant to Fed. R. Civ. P. 26(a)(3), on or before
`January 9, 2020, plaintiff shall file with the Clerk any
`interrogatories, answers thereto, depositions, etc., specifying the
`appropriate portions thereto that plaintiff intends to offer in
`this case. Defendant shall do the same on or before January 9,
`2020. Before designating these discovery materials, the parties
`shall meet and agree as to the elimination of all irrelevant and
`repetitive matter, and all colloquy between counsel in the
`depositions. In addition, the parties shall, in good faith, attempt
`to resolve all objections to testimony. Any objections to the
`
`12
`
`Page 12 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 13 of 15 PageID #: 612
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`testimony that cannot be amicably resolved and the grounds for the
`objections shall be filed in writing by each of the parties no
`later than January 16, 2020, or such objection shall be deemed to
`have been waived. The objections shall include appropriate
`statement of authorities in support of the party's position. This
`paragraph does not apply to discovery materials that will be used
`at trial solely in cross-examination or for impeachment.
`STIPULATION OF FACTS: Counsel are encouraged to meet and
`16.
`enter into stipulations of facts in this case and any such
`stipulation shall be reduced to writing, signed by counsel and
`filed with the Court and with opposing counsel by January 16, 2020.
`17. BIOGRAPHICAL SKETCHES: Biographical sketches of any
`proposed expert witnesses shall be filed with the Court and with
`opposing counsel by January 16, 2020.
`DESIGNATION OF JOINT EXHIBITS: The parties should
`18.
`consider designating a list of joint exhibits and should file any
`list of exhibits to be jointly designated by January 16, 2020.
`PRETRIAL CONFERENCE: A pretrial conference shall be held
`19.
`at 10:00 a.m., on January 23, 2020, at the Clarksburg, West
`Virginia point of holding court. Lead trial counsel for each
`represented party must attend. Counsel and parties should be
`
`13
`
`Page 13 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 14 of 15 PageID #: 613
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`prepared to participate fully and to discuss all aspects of the
`case, including the matters set forth in the pretrial order.
`Persons with full authority to settle the case for each party shall
`be present in person.
`TRIAL: A bench trial in this action shall be held on
`20.
`February 3, 2020, at 9:00 a.m., at the Clarksburg, West Virginia
`point of holding court. This case is presently the first case on
`the trial docket for that week.
`SETTLEMENT AUTHORITY AND SANCTIONS: At least one of the
`21.
`attorneys for each party participating in any conference before
`trial shall have authority to make decisions as to settlement,
`stipulations and admissions on all matters that participants
`reasonably anticipate may be discussed. Counsel and parties are
`subject to sanctions for failures and lack of preparation specified
`in Fed. R. Civ. P. 16(f) and L.R. Civ. P. 37.01 respecting pre-
`trial conferences or orders.
`DEADLINES FINAL: The time limitations set forth above
`22.
`shall not be altered except as set forth in L.R. Civ. P. 16.01(f).
`All dates for submissions, deliveries and filings with the
`Clerk or the Court refer to the date the materials must be actually
`received not the mailing date.
`
`14
`
`Page 14 of 15
`
`
`
`Case 1:17-cv-00116-IMK Document 56 Filed 11/06/17 Page 15 of 15 PageID #: 614
`
`Biogen v. Mylan
`
`1:17cv116
`
`SCHEDULING ORDER
`
`FAILURE ON THE PART OF COUNSEL TO APPEAR AT THE PRETRIAL
`CONFERENCE OR TO COMPLY WITH THE REQUIREMENTS OF THIS ORDER WILL
`SUBJECT THE PARTY OR ATTORNEY TO APPROPRIATE SANCTIONS UNDER THE
`RULES, AND MAY RESULT IN DISMISSAL OR STRIKING OF ALL PLEADINGS OF
`THE FAILING PARTY OR PERSON. COMPLIANCE WITH THIS ORDER INCLUDES
`TIMELY AND GOOD FAITH EFFORT BY ALL PARTIES TO MEET AND JOINTLY
`PREPARE THE FINAL PRETRIAL ORDER AND OTHER ITEMS DESCRIBED ABOVE.
`It is so ORDERED.
`The Court directs the Clerk to transmit copies of this
`Scheduling Order to counsel of record.
`DATED: November 6, 2017
`
`/s/ Irene M. Keeley
`IRENE M. KEELEY
`UNITED STATES DISTRICT JUDGE
`
`15
`
`Page 15 of 15
`
`
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