Before the Court is Plaintiff Provisur Technologies, Inc.’s (“Plaintiff”) Motion to

For the reasons stated during the Court’s July 28, 2022 telephone conference, the motion is GRANTED.

It is hereby ORDERED that Case No. 19-cv-06021-SRB and Case No. 20-cv-06069-SRB are hereby CONSOLIDATED, and all future filings should be made in Case No. 19-cv-06021-

It is further ORDERED that the following consolidated schedule is hereby established: Opening Daubert motions: August 26, 2022 Daubert Oppositions: September 9, 2022 Replies in Support of Daubert motions: September 23, 2022 Designation of Deposition Testimony: September 9, 2022 Witness List; Objections to Designated Deposition; Testimony and Counter Designation: September 16, 2022 Motions in Limine; Joint Jury Instructions: August 2, 2022 Objections to Counter Designations; Submission of Deposition Designations: September 16, 2022 Exhibit Index: September 23, 2022 Stipulation of Any Uncontroverted Facts; Stipulation as to the Admissibility of Evidence; Responses to Motions in Limine: September 27, 2022 Pretrial Conference: September 30, 2022, 9:00am CT Trial Brief; Jury Statement: October 11, 2022 Jury Trial Start: October 14, 2022.1

1 Trial will not be held on October 21, 2022.

Suggestions in opposition to a dispositive motion shall begin with a concise listing of material facts as to which the party contends a genuine dispute exists.

Responses to motions in limine shall be filed within the time limit allowed by Local Rule 7.0 or at least three (3) business days prior to the final pretrial conference whichever is earlier.

At least ten (10) business days prior to the final pretrial conference, each party shall file and serve a list of all witnesses who may be called to testify at trial.

At least three (3) business days prior to the final pretrial conference, the parties shall file a stipulation as to the admissibility of evidence, listing the exhibits for which authenticity and foundation are not contested.

At least five (5) business days prior to trial, counsel for each party shall agree upon a statement to be read to the jury setting forth the background of the case and the claims to be asserted.

Upon review and consideration of the patent claims, specifications, and the prosecution history, in addition to the parties’ claim-construction briefs, applicable law, and presentations by counsel, the Court hereby issues this Order to construe the disputed terms in the Patents-at-Issue.

Taken as a whole, the language, diagrams, and specifications of the Patents-at-Issue describe “food article gripper” as a device that does more than passively grip the side of a food article.5 However, Provisur declined to include this open-and-close operability and seizing action in its proposed construction, which the Court finds to be so generic that it would be unhelpful to a jury.

The industry-specific texts and reference materials cited by Provisur similarly acknowledge that the original iteration of a gripper is one with a mechanical pinching or grasping function that is traditionally actuated by pneumatic power.

While portions of the prosecution history reveal that, a certain times, there may have been a different understanding of the term “gripper,” those instances do not outweigh the remainder of the intrinsic evidence, in particular the patent specifications and claim language that expressly discuss the open-and-close operability and seizing function of the gripper.

During the Markman hearing, the parties additionally debated the use of the term “features,” “functions,” or “positions” to describe those three key functions.7 After considering both the advantages and the shortcomings of the parties’ arguments, the Court agrees that enumerating the three functions will provide the jury with the most clear and accurate guidance during their deliberations.

Notice is hereby given that defendants Weber, Inc., Textor, Inc., Weber Maschinenbau GmbH Breidenbach, Weber Maschinenbau GmbH Neubrandenburg, and Textor Maschinenbau GmbH in the above-named consolidated cases hereby appeal to the United States Court of Appeals for the Federal Circuit from this Court’s Order (claim construction) entered in this action on August 12, 2021 (D.I.

165); from this Court’s Order (expert opinion of Ms. Davis) entered in this action on September 30, 2022 (D.I.

441); from this Court’s Order (expert opinion of Dr. Vorst) entered in this action on September 30, 2022 (D.I.

441); from this Court’s Order (expert opinion of Mr. White) entered in this action on July 13, 2022 (D.I.

537), and from all underlying orders, opinions, decisions and rulings prior to the entry of Judgment.

Weber argues that the two pending IPR petitions involve all the claims relating to the Subject Patents and, if instituted, could potentially render the entire lawsuit moot.

Aug. 14, 2019) (citing SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) (“[A]n institution decision is less effective as a barometer for the issue of whether the PTAB will eventually determine that the challenged claims are unpatentable after SAS.”).

Given the potential impact a stay might have on the timing of discovery and with the agreement of the parties, the Court elected to defer entry of a scheduling order until after the instant motion had been ruled on.

In that instance the Court observed that Provisur and Weber appeared to be direct competitors in what the parties agree is a highly specialized and narrow marketplace (i.e., the sale of industrial-sized cheese and meat slicers that retail for hundreds of thousands of dollars).

Based on the totality of the circumstances, the Court finds that granting Weber’s requested stay at this early stage would yield minimal gains while unnecessarily impairing Provisur’s ability to timely enforce its patent rights.

And none of those were answered consistent with what the patent scoring matrix shows.

But there are none.

In sum, Defendants’ indefiniteness argument here is another attempt to manufacture confusion where there should be none.