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`Case 1:19-cv-00859-RTH Document 58 Filed 08/25/21 Page 1 of 4
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`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`
`E-NUMERATE SOLUTIONS, INC. and
`E-NUMERATE, LLC,
`
`Plaintiffs,
`
`C.A. No. 19-859-RTH
`
`v.
`
`THE UNITED STATES OF AMERICA,
`
`Defendant.
`
`PLAINTIFFS’ UNOPPOSED MOTION TO AMEND THE
`SCHEDULING ORDER
`
`Plaintiffs e-Numerate Solutions, Inc., and e-Numerate, LLC (collectively “e-Numerate” or
`
`“Plaintiffs”) hereby moves this Court to amend the current Scheduling Order (D.I. 57) in this
`
`matter in light of a medical condition incurred by a member of Plaintiffs’ trial team that will
`
`require surgery and a period of recovery following the surgery. The parties met and conferred
`
`and the Government does not oppose this motion and leaves its adjudication to the sound discretion
`
`of the Court. In support thereof, Plaintiffs aver as follows.
`
`WHEREAS this litigation involves eight United States Patents and multiple claims within
`
`each patent;
`
`WHEREAS Plaintiffs served their preliminary infringement contentions in this matter on
`
`December 15, 2020, when this litigation involved seven patents;
`
`WHEREAS Plaintiffs served supplemental preliminary infringement contentions on
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`February 26, 2021;
`
`WHEREAS Plaintiffs amended the Complaint on April 27, 2021, to assert United States
`1
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`Case 1:19-cv-00859-RTH Document 58 Filed 08/25/21 Page 2 of 4
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`Patent 10,423,708;
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`WHEREAS the Government served its preliminary invalidity contentions (“invalidity
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`contentions”) on July 6, 2021;
`
`WHEREAS the Government’s invalidity contentions set forth 62 separate invalidity
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`contentions based on alleged prior art either alone or in combination;
`
`WHEREAS the Government additionally advanced three invalidity contentions based on
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`obviousness-type double patenting that also includes alleged prior art;
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`WHEREAS the Government also advanced multiple invalidity theories under 35 U.S.C. §
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`112;
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`WHEREAS the Government supplemented aspects of its invalidity contentions to avoid
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`motion practice on July 26, 2021;
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`WHEREAS Plaintiffs agreed not to engage in motion practice regarding Defendant’s
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`invalidity contentions (this agreement does not preclude Plaintiffs moving for summary judgment
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`and/or Daubert and/or motions in limine regarding the substance of the contentions); and
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`WHEREAS Plaintiffs were granted additional time pursuant to D.I. 57 to consider the
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`multiplicity of invalidity theories advanced by the Government as well as the Government’s
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`supplemental invalidity contentions before engaging in claim construction in this matter;
`
`WHEREAS a member of Plaintiffs’ trial team suffered a medical condition on August 19,
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`2021 during a trial in the Superior Court for the State of Delaware that required a trip to the
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`emergency room and continuance of the trial;
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`WHEREAS the member of Plaintiffs’ trial team will require surgery to address the medical
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`condition followed by a period of recovery and said surgery is presently being scheduled;
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`2
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`Case 1:19-cv-00859-RTH Document 58 Filed 08/25/21 Page 3 of 4
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`WHEREAS the member of Plaintiffs’ trial team is materially involved in the review of the
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`Government’s invalidity contentions and the preparation for the claim construction proceedings;
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`WHEREAS Plaintiffs may suffer prejudice absent the involvement of the trial team
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`member in the invalidity contention review and the preparation for the claim construction
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`proceedings;
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`WHEREFORE, Plaintiffs respectfully move this Court to amend the Scheduling Order as
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`follows, which the Government does not oppose and leaves to the sound discretion of the Court:
`
`EVENT
`
`PRIOR DEADLINE
`
`NEW DEADLINE
`
`Parties exchange claim terms
`for construction
`Parties exchange proposed
`claim construction
`Parties disclose extrinsic
`evidence they may rely upon
`for claim construction
`Deadline to meet and confer to
`narrow terms in dispute and
`exchange revised claim
`constructions
`Plaintiffs file their opening
`claim construction brief
`The Government files its
`responsive claim construction
`brief
`Plaintiffs file their reply claim
`construction brief
`The Government files it sur-
`reply claim construction brief
`The parties submit the joint
`claim construction statement
`and propose dates for the
`Markman hearing in the first
`half of January
`If desired, parties may submit
`joint technical tutorial to the
`Court
`
`3 September 2021
`
`8 October 2021
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`17 September 2021
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`22 October 2021
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`24 September 2021
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`5 November 2021
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`1 October 2021
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`19 November 2021
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`8 October 2021
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`3 December 2021
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`29 October 2021
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`7 January 2022
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`12 November 2021
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`21 January 2022
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`3 December 2021
`
`11 February 2022
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`10 December 2021
`
`18 February 2022
`
`17 December 2021
`
`25 February 2022
`
`3
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`Case 1:19-cv-00859-RTH Document 58 Filed 08/25/21 Page 4 of 4
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`Markman Hearing
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`To be scheduled
`
`To be scheduled
`
`Deadline for the government
`to produce technical
`documents for additional
`agencies named in the second
`amended complaint.
`
`
`
`
`Dated: August 24, 2021
`
`
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`
`
`
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`
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`31 January 2022
`
`7 March 2022
`
`
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`Respectfully submitted,
`
`/s/ Sean T. O’Kelly
`Sean T. O’Kelly
`Gerard M. O’Rourke
`O’KELLY & O’ROURKE, LLC
`824 N. Market Street, Suite 1001A
`Wilmington, DE 19801
`302-778-4000
`sokelly@okorlaw.com
`gorourke@okorlaw.com
`
`Attorneys for Plaintiffs
`
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`4
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