Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 1 of 20 PageID #: 1380
`Case 1:17-cv-00868—CFC-SRF Document 46 Filed 07/30/19 Page 1 of 20 PageID #: 1380
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`UNIVERSITY OF MASSACHUSETTS and
`
`CARMEL LABORATORIES, LLC,
`
`Plaintiffs,
`
`v
`
`L’OREAL USA, INC.,
`
`Defendant.
`
`Case No. 17-cv-868-CFC-SRF
`
`
`
`{K w SCHEDULING ORDER
`Thisg‘fday ofJuly, 2019, the Court having conducted an initial Rule 16(b)
`
`scheduling conference pursuant to Local Rule 16.1(b), and the parties having determined after
`
`discussion that the matter cannot be resolved at this juncture by settlement, voluntary
`
`mediation, or binding arbitration:
`
`IT IS ORDERED that:
`
`1.
`
`Relevant Deadlines and Dates. All relevant deadlines and dates established by this
`
`Order are set forth in the chart attached as Exhibit A.
`
`2.
`
`Rule 26(a)! l l Initial Disclosures. The parties shall make their initial
`
`disclosures required by Federal Rule of Civil Procedure 26(a)(1) on or before August 19,
`
`2019.
`
`3.
`
`Disclosure of Asserted Claims and Infringement Contentions. On or
`
`before October 1, 2019, Plaintiffs shall serve a “Disclosure of Asserted Claims and
`
`Infringement Contentions” which shall contain the following information:
`
`(a)
`
`Each claim of each asserted patent that is allegedly infringed by each
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 2 of 20 PageID #: 1381
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 2 of 20 PageID #: 1381
`
`opposing party, including for each claim the applicable statutory subsections of 35
`
`U.S.C. §27l asserted;
`
`(b)
`
`Separately for each asserted claim, each accused apparatus, product,
`
`device, process, method, act, or other instrumentality (“Accused Instrumentality”) of
`
`each opposing party of which the party is aware. This identification shall be as specific
`
`as possible. Each product, device, and apparatus shall be identified by name or model
`number, if known. Each method or process shall be identified by name, if known, or by
`
`any product, device, or apparatus which, when used, allegedly results in the practice of
`
`the claimed method or process;
`
`(c)
`
`A chart identifying specifically where and how each limitation of each
`
`asserted claim is found within each Accused lnstrumentality, including for each
`
`limitation that such party contends is governed by 35 U.S.C. § 112(0, the identity of
`
`the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the
`
`claimed function;
`
`((1)
`
`For each claim alleged to have been indirectly infringed, an
`
`identification of any direct infringement and a description of the acts of the alleged
`
`indirect infringer that contribute to or are inducing that direct infringement. Insofar as
`
`alleged direct infringement is based onjoint acts of multiple parties, the role of each
`
`such party in the direct infringement must be described;
`
`(e)
`
`Whether each limitation of each asserted claim is alleged to be
`
`present literally or under the doctrine of equivalents in the Accused Instrumentality;
`
`(i)
`
`For any patent that claims priority to an earlier application, the
`
`priority date to which each asserted claim is alleged to be entitled;
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 3 of 20 PageID #: 1382
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 3 of 20 PagelD #: 1382
`
`(g)
`
`If a party claiming patent infringement wishes to preserve the right to
`
`rely, for any purpose, on the assertion that its own or its licensee’s apparatus, product,
`
`device, process, method, act, or other instrumentality practices the claimed invention,
`
`the party shall identify, separately for each asserted claim, each such apparatus, product,
`
`device, process, method, act, or other instrumentality that incorporates or reflects that
`
`particular claim;
`
`(h)
`
`The timing of the point of first infringement, the start of claimed
`
`damages, and the end of claimed damages; and
`
`(i)
`
`If a party claiming patent infringement alleges willful infringement,
`
`the basis for such allegation.
`
`4.
`
`Document Production Accompanying Disclosure of Asserted Claims and
`
`Infringement Contentions. With the “Disclosure of Asserted Claims and Infringement
`
`Contentions,” the party claiming patent infringement shall produce to each opposing party or
`
`make available for inspection and copying:
`
`(a)
`
`Documents (e.g., contracts, purchase orders, invoices, advertisements,
`
`marketing materials, offer letters, beta site testing agreements, and third party orjoint
`
`development agreements) sufficient to evidence each discussion with, disclosure to, or
`
`other manner of providing to a third party, or sale of or offer to sell, or any public use
`
`of, the claimed invention prior to the date of application for the asserted patent(s);
`
`(b)
`
`All documents evidencing the conception, reduction to practice,
`
`design, and development of each claimed invention, which were created on or before
`
`the date of application for the asserted patent(s) or the priority date identified pursuant
`
`to paragraph 3(t) of this Order, whichever is earlier;
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 4 of 20 PageID #: 1383
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 4 of 20 PagelD #: 1383
`
`(c)
`
`(d)
`
`A copy of the file history for each asserted patent;
`
`All documents evidencing ownership of the patent rights by the
`
`party asserting patent infringement;
`
`(e)
`
`If a party identifies instrumentalities pursuant to paragraph 3(g) of
`
`this Order, documents sufficient to show the operation of any aspects or elements of
`
`such instrumentalities the patent claimant relies upon as embodying any asserted
`
`claims;
`
`(f)
`
`All agreements, including licenses, transferring an interest in any
`
`asserted patent;
`
`(g)
`
`All agreements that the party asserting infringement contends
`
`are comparable to a license that would result from a hypothetical reasonable
`
`royalty negotiation;
`
`(h)
`
`All agreements that otherwise may be used to support the party
`
`asserting infringement’s damages case;
`
`(i)
`
`If a party identifies instrumentalities pursuant to paragraph 3(g) of this
`
`Order, documents sufficient to show marking of such embodying accused
`
`instrumentalities; and if the party wants to preserve the right to recover lost profits
`
`based on such products, the sales, revenues, costs, and profits of such embodying
`
`accused instrumentalities; and
`
`(j)
`
`All documents comprising or reflecting a F/RAND commitment
`
`or agreement with respect to the asserted patent(s).
`
`The producing party shall separately identify by production number the documents that
`
`correspond to each category set forth in this paragraph. A party’s production of a document as
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 5 of 20 PageID #: 1384
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 5 of 20 PageID #: 1384
`
`required by this paragraph shall not constitute an admission that such document evidences or
`
`is prior art under 35 U.S.C. § 102.
`
`5.
`
`Invalidig Contentions. On or before November 22, 2019, Defendant shall serve
`
`its “Invalidity Contentions” which shall contain the following information:
`
`(a)
`
`The identity of each item of prior art that the party alleges anticipates
`
`each asserted claim or renders the claim obvious. Each prior art patent shall be identified
`
`by its number, country of origin, and date of issue. Each prior art publication shall be
`
`identified by its title, date of publication, and, where feasible, author and publisher. Each
`
`alleged sale or public use shall be identified by specifying the item offered for sale or
`
`publicly used or known, the date the offer or use took place or the information became
`
`known, and the identity of the person or entity which made the use or which made and
`
`received the offer, or the person or entity which made the information known or to
`
`whom it was made known. For pre-AIA claims, prior art under 35 U.S.C. § 102(f) shall
`
`be identified by providing the name of the person(s) from whom and the circumstances
`
`under which the invention or any part of it was derived. For pre-AIA claims, prior art
`
`under 35 U.S.C. § 102(g) shall be identified by providing the identities of the person(s)
`
`or entities involved in and the circumstances surrounding the making of the invention
`
`before the patent applicant(s);
`
`(b)
`
`Whether each item of prior art anticipates each asserted claim or
`
`renders it obvious. If obviousness is alleged, an explanation of why the prior art renders
`
`the asserted claim obvious, including an identification of any combinations of prior art
`
`showing obviousness;
`
`(c)
`
`A chart identifying specifically where and how in each alleged item of
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 6 of 20 PageID #: 1385
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 6 of 20 PageID #: 1385
`
`prior art each limitation of each asserted claim is found, including for each limitation
`
`that such party contends is governed by 35 U.S.C. § 112(t), the identity of the
`
`structure(s), act(s), or material(s) in each item of prior art that performs the claimed
`
`function; and
`
`(d)
`
`Any grounds of invalidity based on 35 U.S.C. § 101 , indefiniteness
`
`under 35 U.S.C. § 1 12(b), or lack of enablement or insufficient written description
`
`under 35 U.S.C. § 112(a) of any of the asserted claims.
`
`6.
`
`Document Production Accompanying Invalidig Contentions. With the
`
`“Invalidity Contentions,” the party opposing a claim of patent infringement shall produce or
`
`make available for inspection and copying:
`
`(a)
`
`Source code, specifications, schematics, flow charts, artwork, formulas,
`
`or other documentation sufficient to show the operation of any aspects or elements of an
`
`Accused Instrumentality identified by the patent claimant in its chart produced pursuant
`
`to paragraph 3(c) of this Order;
`
`(b)
`
`A copy or sample of the prior art identified pursuant to paragraph 5(a)
`
`that does not appear in the file history of the patent(s) at issue. To the extent any such
`
`item is not in English, an English translation of the portion(s) relied upon shall be
`
`produced;
`
`(c)
`
`All agreements that the party opposing infringement contends
`
`are comparable to a license that would result from a hypothetical reasonable
`
`royalty negotiation;
`
`(d)
`
`Documents sufficient to show the sales, revenue, cost, and profits
`
`for Accused Instrumentalities identified pursuant to paragraph 3(b) of this Order
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 7 of 20 PageID #: 1386
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 7 of 20 PagelD #: 1386
`
`for any period of alleged infringement; and
`
`(6)
`
`All agreements that may be used to support the damages case of the
`
`party that is denying infringement.
`
`The producing party shall separately identify by production number the documents
`
`that correspond to each category set forth in this paragraph.
`
`7.
`
`Amendment to Contentions. Amendment of the Infringement Contentions or the
`
`Invalidity Contentions may be made only by order of the Court upon a timely showing of good
`
`cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-
`
`moving party, support a finding of good cause include (a) recent discovery of material prior art
`
`despite earlier diligent search and (b) recent discovery of nonpublic information about the
`
`Accused Instrumentality which was not discovered, despite diligent efforts, before the service
`
`of the Infringement Contentions. The duty to supplement discovery responses does not excuse
`
`the need to obtain leave of the Court to amend contentions.
`
`8.
`
`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
`
`parties, and to amend or supplement the pleadings, shall be filed on or before August 23, 2019.
`
`9.
`
`Discoveg.
`
`(a)
`
`Discovem Cut Off. All fact discovery in this case shall be initiated so
`
`that it will be completed on or before May 22, 2020.
`
`(b)
`
`Document Production. Document production shall be completed on or
`
`before February 7, 2020.
`
`(c)
`
`Reguests for Admission. 50 requests for admission are permitted for each
`
`side.
`
`(d)
`
`Interrogatories. 25 interrogatories, including contention interrogatories,
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 8 of 20 PageID #: 1387
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 8 of 20 PageID #: 1387
`
`are permitted for each side.
`
`(e)
`
`Depositions.
`
`i.
`
`Limitation on Hours for Deposition Discoveg. Each
`
`side is limited to a total of 70 hours of taking testimony by deposition
`
`upon oral examination for fact witnesses. Each side is limited to 7 hours
`
`of taking testimony by deposition upon oral examination for each expert
`
`witness. Any translation time required will not count toward the 70-hour
`
`time limitation.
`
`ii.
`
`Location of Depositions. The parties will work together in
`
`good faith to agree on locations for depositions that are mutually convenient.
`
`Depositions need not be held within the District.
`
`10.
`
`Pinpoint Citations.
`
`Pinpoint citations are required in all briefing, letters, and
`
`concise statements of facts. The Court will ignore any assertions of controverted facts and
`
`controverted legal principles not supported by a pinpoint citation to, as applicable: the record,
`
`an attachment or exhibit, and/or case law or appropriate legal authority. See United States v.
`
`Dunkel, 927 F.2d 955, 956 (“Judges are not like pigs, hunting for truffles buried in briefs”).
`
`11.
`
`Application to Court for Protective Order. Should counsel find it will be
`
`necessary to apply to the Court for a protective order specifying terms and conditions for the
`
`disclosure of confidential information, counsel should confer and attempt to reach an
`
`agreement on a proposed form of order and submit it to the Court within ten days from the
`
`date of this Order.
`
`Any proposed protective order must include the following paragraph:
`
`Other Proceedings. By entering this Order and limiting the
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 9 of 20 PageID #: 1388
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 9 of 20 PagelD #: 1388
`
`disclosure of information in this case, the Court does not
`intend to preclude another court from finding that
`information may be relevant and subject to disclosure in
`another case. Any person or party subject to this Order
`who becomes subject to a motion to disclose another
`party’s information designated as confidential pursuant to
`this Order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be
`heard on whether that information should be disclosed.
`
`12.
`
`Disputes Relating to Discoveg Matters and Protective Orders. Should
`
`counsel find they are unable to resolve a dispute relating to a discovery matter or protective
`
`order, the parties shall contact the Court’s Case Manager to schedule an in-person
`
`conference/argument.
`
`(a)
`
`Unless otherwise ordered, by no later than 72 hours prior to the
`
`conference/argument, the party seeking relief shall file with the Court a letter,
`
`not to exceed three pages, outlining the issues in dispute and the party’s
`
`position on those issues. The party shall submit as attachments to its letter (1)
`
`an averment of counsel that the parties made a reasonable effort to resolve the
`
`dispute and that such effort included oral communication that involved
`
`Delaware counsel for the parties, and (2) a draft order for the Court’s signature
`
`that identifies with specificiy the relief sought by the party. The party shall file
`
`concurrently with its letter a motion that in no more than one paragraph sets
`
`forth the relief sought.
`
`(b)
`
`By no later than 48 hours prior to the conference/argument, any party
`
`opposing the application for relief may file a letter, not to exceed three pages,
`
`outlining that party’s reasons for its opposition.
`
`(c)
`
`Two hard copies of the parties’
`
`letters and attachments must be
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 10 of 20 PageID #: 1389
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 10 of 20 PagelD #: 1389
`
`provided to the Court within one hour of e-filing the document(s). The hard copies
`
`shall comply with paragraphs 10 and 14 of this Order.
`
`(d)
`
`If a motion concerning a discovery matter or protective order is
`
`filed without leave of the Court that does not comport with the procedures set forth
`
`in this paragraph, the motion will be denied without prejudice to the moving party’s
`
`right to bring the dispute to the Court through the procedures set forth in this
`
`paragraph.
`
`13.
`
`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
`
`the Clerk an original and two copies of the papers. A redacted version of any sealed document
`
`shall be filed electronically within seven days of the filing of the sealed document.
`
`14.
`
`Hard Copies. The parties shall provide to the Court two hard copies of all
`
`letters filed pursuant to paragraph 12 of this Order, all briefs, and any other document filed in
`
`support of any such letters and briefs (i.e., the concise statement of facts filed pursuant to
`
`paragraph 19 of this Order, appendices, exhibits, declarations, affidavits, etc.). This provision
`
`also applies to papers filed under seal. Exhibits and attachments shall be separated by tabs.
`
`Each exhibit and attachment shall have page numbers of some sort such that a particular page
`
`of an exhibit or attachment can be identified by a page number. The parties shall take all
`
`practical measures to avoid filing multiple copies of the same exhibit or attachment. The
`
`parties should highlight the text of exhibits and attachments they wish the Court to read. The
`
`parties are encouraged to include in an exhibit or attachment only the pages of the document
`
`in question that (1) identify the document (e.g., the first page of a deposition transcript or the
`
`cover page of a request for discovery) and (2) are relevant to the issue(s) before the Court.
`
`15.
`
`Claim Construction Issue Identification. On or before December 13, 2020, the
`
`10
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 11 of 20 PageID #: 1390
`Case 1:17-cv-00868—CFC-SRF Document 46 Filed 07/30/19 Page 11 of 20 PagelD #: 1390
`
`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need
`
`construction and their proposed claim construction of those term(s)/phrase(s). This document
`
`will not be filed with the Court. Subsequent to exchanging that list, the parties will meet and
`
`confer to prepare a Joint Claim Construction Chart to be filed no later than December 20,
`
`2020. The Joint Claim Construction Chart, in Word format, shall be e-mailed simultaneously
`
`with filing to cfc civili‘iflded.uscourtsgov. The text for the Joint Claim Construction Chart
`
`shall be 14-point and in Times New Roman or a similar typeface. The parties’ Joint Claim
`
`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue
`
`and should include each party’s proposed construction of the disputed claim language with
`
`citation(s) only to the intrinsic evidence in support of their respective proposed constructions.
`
`A separate text- searchable PDF of each of the patent(s) in issue shall be submitted with this
`
`Joint Claim Construction Chart. In this joint submission, the parties shall not provide
`
`argument. Each party shall file concurrently with the Joint Claim Construction Chart a
`
`“Motion for Claim Construction” that requests the Court to adopt the claim construction
`
`position(s) of that party set forth in the Joint Claim Construction Chart. The motion shall not
`
`contain any argument and shall simply state that the party “requests that the Court adopt the
`
`claim construction position[s] of [the party] set forth in the Joint Claim Construction Chart
`
`(DJ. []).”
`
`[6.
`
`Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
`
`brief, not to exceed 5,500 words, on January 10, 2020. The Defendant shall serve, but not file,
`
`its answering brief, not to exceed 8,250 words, on January 31, 2020. The Plaintiff shall serve,
`
`but not file, its reply brief, not to exceed 5,500 words, on February 14, 2020. The Defendant
`
`shall serve, but not file, its sur-reply brief, not to exceed 2,750 words, on February 28, 2020.
`
`ll
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 12 of 20 PageID #: 1391
`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 12 of 20 PagelD #: 1391
`
`The text for each brief shall be 14-point and in Times New Roman or a similar typeface. Each
`
`brief must include a certification by counsel that the brief complies with the type and number
`
`limitations set forth above. The person who prepares the certification may rely on the word
`
`count of the word-processing system used to prepare the brief.
`
`No later than March 6, 2020, the parties shall file a Joint Claim Construction Brief.
`
`The parties shall copy and paste their untitled briefs into one brief, with their positions on
`
`each claim term in sequential order, in substantially the form below.
`
`JOINT CLAIM CONSTRUCTION BRIEF
`
`I.
`
`II.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`A.
`
`[TERM 1]
`
`l.
`2.
`3.
`4.
`
`Plaintiff’s Opening Position
`Defendant’s Answering Position
`Plaintiff‘s Reply Position
`Defendant’s Sur-Reply Position
`
`B.
`
`[TERM 2]
`
`:5pr
`
`Plaintiff’s Opening Position
`Defendant’s Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
`
`Etc. The parties need not include any general summaries of the law relating to claim
`
`construction. If there are any materials that would be submitted in an appendix, the parties
`
`shall submit them in a Joint Appendix. Citations to intrinsic evidence shall be set forth in the
`
`Joint Claim Construction Brief. Citations to expert declarations and other extrinsic evidence
`
`may be made in the Joint Claim Construction Brief as the parties deem necessary, but the
`
`12
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 13 of 20 PageID #: 1392
`Case 1:17-cv-00868—CFC-SRF Document 46 Filed 07/30/19 Page 13 of 20 PageID #: 1392
`
`Court will review such extrinsic evidence only if the Court is unable to construe the disputed
`
`claim terms based on the intrinsic evidence. See Vitronics Corp. v. Conceptronic, Inc., 90
`
`F.3d 1576, 1584 (Fed. Cir. 1996). Declarations shall not contain legal argument or be used to
`
`circumvent the briefing word limitations imposed by this paragraph. The Joint Claim
`
`Construction Brief and Joint Appendix shall comply with paragraphs 10 and 14 of this Order.
`
`17.
`
`Hearing on Claim Construction. Beginning at 9:00 am. on April 6, 2020, the
`
`Court will hear argument on claim construction. Absent prior approval of the Court (which, if it
`
`is sought, must be done by joint letter submission no later than the date on which answering
`
`claim construction briefs are due to be served), the parties shall not present testimony at the
`
`argument, and the argument shall not exceed a total of three hours.
`
`18.
`
`Disclosure of Expert Testimony.
`
`(a)
`
`Expert Reports. For the party with the initial burden of proof on the
`
`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due
`
`on or before June 5, 2020. The supplemental disclosure to contradict or rebut
`
`evidence on the same matter identified by another party is due on or before June 30,
`
`2020. Reply expert reports from the party with the initial burden of proof are due on
`
`or before July 17, 2020. No other expert reports will be permitted without either the
`
`consent of all parties or leave of the Court. No more than four expert reports per side
`
`will be permitted, but the parties agree to work together in good faith to revisit this
`
`limit if necessary. Along with the submissions of the expert reports, the parties shall
`
`provide the dates and times of their experts’ availability for deposition. Depositions
`
`of experts shall be completed on or before August 7, 2020.
`
`(b)
`
`Objections to Expert Testimony. To the extent any objection to expert
`
`l3
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 14 of 20 PageID #: 1393
`Case 1:17-cv-OO868—CFC-SRF Document 46 Filed 07/30/19 Page 14 of 20 PagelD #: 1393
`
`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
`
`Pharmaceuticals, Inc., 509 US. 579 (1993), as incorporated in Federal Rule of
`
`Evidence 702, it shall be made by motion no later than the deadline for dispositive
`
`motions set forth herein, unless otherwise ordered by the Court.
`
`19.
`
`Case Dispositive Motions.
`
`(a)
`
`No early motions without leave. All case dispositive motions, an
`
`opening brief, and affidavits, if any, in support of the motion shall be served and filed
`
`on or before September 4, 2020. All oppositions shall be served and filed on or before
`
`October 2, 2020. All replies shall be served and filed on or before October 16, 2020.
`
`No case dispositive motion under Rule 56 may be filed more than ten days before the
`
`above date without leave of the Court.
`
`(b)
`
`Motions to be Filed Separately. A party shall not combine multiple
`
`motions seeking separate and distinct relief into a single motion.
`
`(c)
`
`Word limits combined with Daubert motion word limits. Each party is
`
`permitted to file as many case dispositive motions as desired; provided, however, that
`
`each SIDE will be limited to a combined total of 10,000 words for all opening briefs, a
`
`combined total of 10,000 words for all answering briefs, and a combined total of 5,000
`
`words for all reply briefs regardless of the number of case dispositive motions that are
`
`filed. In the event that a party files, in addition to a case dispositive motion, a Daubert
`
`motion to exclude or preclude all or any portion of an expert’s testimony, the total
`
`amount of words permitted for all case dispositive and Daubert motions shall be
`
`increased for each SIDE to 12,500 words for all opening briefs, 12,500 words for all
`
`answering briefs, and 6,250 words for all reply briefs. The text for each brief shall be
`
`14
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 15 of 20 PageID #: 1394
`Case 1:17-cv-OO868—CFC-SRF Document 46 Filed 07/30/19 Page 15 of 20 PagelD #: 1394
`
`14- point and in Times New Roman or a similar typeface. Each brief must include a
`
`certification by counsel that the brief complies with the type and number limitations set
`
`forth above. The person who prepares the certification may rely on the word count of
`
`the word-processing system used to prepare the brief.
`
`(d)
`
`Concise Statement of Facts Requirement. Any motion for summary
`
`judgment shall be accompanied by a separate concise statement detailing each material
`
`fact as to which the moving party contends that there are no genuine issues to be tried
`
`that are essential for the Court’s determination of the summary judgment motion (not
`
`the entire case).I Any party who opposes the motion shall file and serve with its
`
`opposing papers a separate document containing a single concise statement that admits
`
`or disputes the facts set forth in the moving party’s concise statement, as well as sets
`
`forth all material facts as to which it is contended there exists a genuine issue necessary
`
`to be litigated.
`
`(e)
`
`Focus of the Concise Statement. When preparing the separate concise
`
`statement, a party shall reference only the material facts that are absolutely necessary
`
`for the Court to determine the limited issues presented in the motion for summary
`
`judgment (and no others), and each reference shall contain a citation to a particular
`
`affidavit, deposition, or other document that supports the party’s interpretation of the
`
`material fact. Documents referenced in the concise statement may, but need not, be
`
`filed in their entirety if a party concludes that the full context would be helpful to the
`
`' A party does not satisfy the requirements of this paragraph by stating that an accused
`instrumentality infringes an asserted claim or asserted claim limitation. The party must detail
`each material fact in its concise statement of facts. The concise statements of facts play an
`important gatekeeping role in the Court’s consideration of summaryjudgment motions.
`
`15
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 16 of 20 PageID #: 1395
`Case 1:17-cv-OO868—CFC-SRF Document 46 Filed 07/30/19 Page 16 of 20 PagelD #: 1395
`
`Court (e.g., a deposition miniscript with an index stating what pages may contain key
`
`words may often be useful). The concise statement shall particularly identify the page
`
`and portion of the page of the document referenced. The document referred to shall
`
`have relevant portions highlighted or otherwise emphasized. The parties may extract
`
`and highlight the relevant portions of each referenced document, but they shall ensure
`
`that enough of a document is attached to put the matter in context. If a party determines
`
`that an entire deposition transcript should be submitted, the party should consider
`
`whether a miniscript would be preferable to a full-size transcript. If an entire miniscript
`
`is submitted, the index of terms appearing in the transcript must be included, if it exists.
`
`When multiple pages from a single document are submitted, the pages shall be grouped
`
`in a single exhibit. Concise statements of fact shall comply with paragraphs 10 and 14
`
`of this Order.
`
`(f)
`
`Word Limits for Concise Statement. The concise statement in support
`
`of or in opposition to a motion for summaryjudgment shall be no longer than 1,750
`
`words. The text for each statement shall be 14-point and in Times New Roman or a
`
`similar typeface. Each statement must include a certification by counsel that the
`
`statement complies with the type and number limitations set forth above. The person
`
`who prepares the certification may rely on the word count of the word-processing
`
`system used to prepare the statement.
`
`(g)
`
`Affidavits and declarations. Affidavits or declarations setting forth
`
`facts and/or authenticating exhibits, as well as exhibits themselves, shall be attached
`
`only to the concise statement (i.e., not briefs).
`
`(h)
`
`Scope of Judicial Review. When resolving motions for summary
`
`16
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 17 of 20 PageID #: 1396
`Case 1:17-cv-OO868—CFC-SRF Document 46 Filed 07/30/19 Page 17 of 20 PagelD #: 1396
`
`judgment, the Court shall have no independent duty to search and consider any part of
`
`the record not otherwise referenced in the separate concise statements of the parties.
`
`Further, the Court shall have no independent duty to review exhibits in their entirety, but
`
`rather will review only those portions of the exhibits specifically identified in the
`
`concise statements. Material facts set forth in the moving party’s concise statement will
`
`be deemed admitted unless controverted by a separate concise statement of the opposing
`
`party.
`
`20.
`
`Applications by Motion. Except as otherwise specified herein, any application
`
`to the Court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7.l.l.
`
`21.
`
`Pretrial Conference. On January 28, 2021, the Court will hold a Rule 16(e) final
`
`pretrial conference in court with counsel beginning at 4 pm. The parties shall file ajoint
`
`proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5:00 pm. on the
`
`third business day before the date of the final pretrial conference. Unless otherwise ordered by
`
`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for the
`
`preparation of the proposed joint final pretrial order. The joint pretrial order shall comply with
`
`paragraphs 10 and 14 of this Order.
`
`22.
`
`Motions in Limine. Motions in limine shall not be separately filed. All in
`
`limine requests and responses thereto shall be set forth in the proposed pretrial order. Each
`
`party shall be limited to three in limine requests, unless otherwise permitted by the Court. Each
`
`in Iimine request and any response shall contain the authorities relied upon; each in limine
`
`request may be supported by a maximum of three pages of argument and may be opposed by a
`
`maximum of three pages of argument, and the party making the in limine request may add a
`
`17
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 46 Filed 07/30/19 Page 18 of 20 PageID #: 1397
`Case 1:17-cv-00868—CFC-SRF Document 46 Filed 07/30/19 Page 18 of 20 PageID #: 1397
`
`maximum of one additional page in reply in support of its request. If more than one party is
`
`supporting or opposing an in limine request, such support or opposition shall be combined in a
`
`single three- page submi