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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`PACT XPP SCHWEIZ AG
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`Plaintiff,
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`V.
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`INTEL CORPORATION,
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`Defendant.
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`) C.A. No. 19-1006-RGA
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`~ ] SCHEDULING ORDER
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`This ~
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`day of July, 2019, the Court having conducted an initial scheduling conference
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`pursuant to Local Rule 16.1 (b ), and the parties having determined after discussion that the matter
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`cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Initial Disclosures and Discovery.
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`a.
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`Rule 26(a)(l) Initial Disclosures. The parties shall make their initial
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`disclosures pursuant to Federal Rule of Civil Procedure 26(a)(l) on or before July 15, 2019.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before March 13, 2020,
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`except that the deadline to amend pleadings to add a claim or defense for unenforceability due to
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`inequitable conduct shall be filed on or before June 5, 2020.
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`3.
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`Discovery.
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`a.
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`Discovery Cut Off. All discovery in this case shall be initiated so that it
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`will be completed on or before October 2, 2020.
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`b.
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`Document Production. Document production shall be substantially
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`complete by May 6, 2020.
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`c.
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`Requests for Admission. A maximum of 100 requests for admission are
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`permitted for each side. There shall be no limit, however, on the number ofrequests for
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`admission for the purposes of authenticating documents, although the parties agree to cooperate
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`to reduce, if not eliminate altogether, objections based on authenticity and thus the need to serve
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`requests for admission for authentication purposes.
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`d.
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`Interrogatories. A maximum of 30 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`e.
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`Depositions.
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`1.
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`Limitation on Hours for Fact Deposition Discovery. Each side is
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`limited to a total of 120 hours of taking testimony by deposition upon oral examination of fact
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`witnesses, including third party depositions. The deposition of Martin Vorbach, in his personal
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`capacity, is limited to no more than 14 hours unless otherwise agreed or Ordered by Court. The
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`Parties shall meet and confer on time limits of Rule 30(b)(6) witnesses depending on the number
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`of topics on which a witness is designated to testify. The parties will work together in good faith
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`to avoid the unnecessary duplication of deposition topics where witnesses are deposed in both
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`their Rule 30(b)(6) and Rule 30(b)(l) capacities. Notwithstanding the foregoing, for depositions
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`where a translator is used the parties will work in good-faith to accommodate reasonable requests
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`for additional hours.
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`11.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court or by agreement of the parties.
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`A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be
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`considered as having filed an action in this Court for the purpose of this provision. Party or
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`representative deponents who live in the United States (including Fed. R. Civ. P. 30(b)(6)
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`designees and party representatives) shall be deposed within 100 miles of their residence or the
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`California offices of their counsel, unless otherwise agreed by the parties.
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`111.
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`Expert Deposition Discovery. The parties shall meet and confer
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`concerning the length of expert depositions within 5 days of the exchange of answering expert
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`reports. To the extent the parties cannot reach agreement, the parties shall follow the procedures
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`of subparagraph (f) of this paragraph.
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`lV.
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`Foreign Witnesses. If a Party wishes to call a non-U.S. resident as
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`trial witness, said party must make a good faith representation identifying the witness on or
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`before May 6, 2020 and the parties shall work together in good faith to arrange the deposition of
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`such witness before the discovery cutoff. For good cause, balanced against any significant
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`prejudice to the other party, a party may seek leave of Court to identify any additional non-U.S.
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`resident trial witnesses after May 6, 2020, and if permitted by the Court to add such witnesses,
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`the parties shall promptly work together to arrange the witnesses' deposition.
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`f.
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`Discovery Matters and Disputes Relating to Protective Orders and ESI
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`Orders. Should counsel find they are unable to resolve a discovery matter or a dispute relating to
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`a protective order or ESI order, the parties involved in the discovery matter or protective/ES!
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`order dispute shall contact the Court' s Case Manager to schedule an in-person
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`conference/argument. Unless otherwise ordered, by no later than forty-eight hours prior to the
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`conference/argument, the party seeking relief shall file with the Court a letter, not to exceed three
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`pages, outlining the issues in dispute and its position on those issues. By no later than twenty(cid:173)
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`four hours prior to the conference/argument, any party opposing the application for relief may
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`file a letter, not to exceed three pages, outlining that party' s reasons for its opposition. Should
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`any document(s) be filed under seal, a courtesy copy of the sealed document(s) must be provided
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`to the Court within one hour of e-filing the document(s).
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`If a discovery-related motion is filed without leave of the Court, it will be denied without
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`prejudice to the moving party' s right to bring the dispute to the Court through the discovery
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`matters procedures set forth in this Order.
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`4.
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`Application to Court for Protective Order. The parties shall submit a stipulated
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`Protective Order on or before July 25, 2019 and a stipulated ESI Order on or before August 26,
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`2019. Should counsel be unable to reach an agreement on a proposed form of order, counsel
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`must follow the provisions of Paragraph 3(f) above.
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`Any proposed protective order must include the following paragraph:
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`Other Proceedings. By entering this order and limiting the
`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.
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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk an original and one copy of the papers. A redacted version of any sealed document
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`shall be filed electronically within seven days of the filing of the sealed document.
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`6.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`briefs and one courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
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`under seal.
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`7.
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`Initial Discovery in Patent Litigation.
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`b.
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`On or before July 15, 2019, the plaintiff shall specifically identify the
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`accused products/methods and the asserted patents defendant allegedly infringes, and
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`produce the file history for each asserted patent.
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`c.
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`On or before August 30, 2019, defendant shall produce to the plaintiff the
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`core technical documents related to the accused products/methods, including but not
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`limited to operation manuals, product literature, schematics, and specifications.
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`d.
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`On or before Octa ber 11 , 2019, plaintiff shall produce to defendant an
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`initial claim chart relating each accused product/method to each asserted claim that each
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`product allegedly infringes. Plaintiff shall initially select no more than 180 claims to
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`chart, and for good cause may seek to substitute or add new claims within the 180 claim
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`limit in a reasonable and prompt period of time after Intel serves its invalidity
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`contentions. Good cause includes but is not limited to prior art produced by Intel after
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`PACT selects its initial 180 claims.
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`e.
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`On or before November 22, 2019, defendant shall produce to the plaintiff
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`its initial invalidity contentions for each asserted claim, as well as the related invalidating
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`references (e.g., publications, manuals, and patents).
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`8.
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`Narrowing of the Asserted Claims and Prior Art References.
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`a.
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`On October 1, 2020, Plaintiff shall serve its Second Election of Asserted
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`Claims, which shall identify no more than 60 total asserted claims.
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`b.
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`On October 8, 2020, Defendant shall serve its Second Election of Asserted
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`Prior Art.
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`5
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`Case 1:19-cv-01006-JDW Document 20 Filed 07/16/19 Page 6 of 10 PageID #: 947
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`c.
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`On August 6, 2021 , Plaintiff shall serve its Final Election of Asserted
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`Claims.
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`d.
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`On August 13, 2021 , Defendant shall serve its Final Election of Asserted
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`Prior Art.
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`e.
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`The parties shall meet and confer regarding additional aspects of asserted
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`claim and prior art narrowing, including limits on the number of Defendant's asserted
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`prior art references or combinations, limits on the total number of asserted claims, any
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`per-patent maximums, and any other relevant issues, and the parties shall raise any
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`unresolved issues with the Court pursuant to the provisions of Paragraph 3(f) above so as
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`to be resolved sufficiently ahead of each deadline in this section.
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`9.
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`Claim Construction Issue Identification. On or before December 20, 2019, the
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`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need construction.
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`On or before January 17, 2020, the parties shall exchange their proposed claim construction of
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`those term(s)/phrase(s). This document will not be filed with the Court. Subsequent to
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`exchanging that list, the parties will meet and confer to prepare a Joint Claim Construction Chart
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`to be filed no later than January 31 , 2020. The Joint Claim Construction Chart, in Word or
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`WordPerfect format, shall be e-mailed simultaneously with filing to rga_civil@ded.uscourts.gov.
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`The parties' Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of
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`the claim(s) in issue, and should include each party' s proposed construction of the disputed claim
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`language with citation(s) only to the intrinsic evidence in support of their respective proposed
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`constructions. A copy of the patent(s) in issue as well as those portions of the intrinsic record
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`relied upon shall be submitted with this Joint Claim Construction Chart. In this joint submission,
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`the parties shall not provide argument.
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`10.
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`Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
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`brief, not to exceed 20 pages, on March 6, 2020. The Defendant shall serve, but not file, its
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`answering brief, not to exceed 30 pages, on April 3, 2020. The Plaintiff shall serve, but not file,
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`its reply brief, not to exceed 20 pages, on April 24, 2020. The Defendant shall serve, but not file,
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`its sur-reply brief, not to exceed 10 pages, on May 15, 2020. No later than May 22, 2020, the
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`parties shall file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled
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`briefs into one brief, with their positions on each claim term in sequential order, in substantially
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`the form below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`II.
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`A.
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`B.
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`Agreed-upon Constructions
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`Disputed Constructions
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`[TERM 1]
`1.
`Plaintiffs Opening Position
`2.
`Defendant's Answering Position
`3.
`Plaintiffs Reply Position
`4.
`Defendant's Sur-Reply Position
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`[TERM 2]
`1.
`Plaintiffs Opening Position
`2.
`Defendant's Answering Position
`3.
`Plaintiffs Reply Position
`4.
`Defendant's Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix .
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`11.
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`Hearing on Claim Construction. Beginning at 9:00 a.m. on June 10, 2020, the
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`Court will hear argument on claim construction. Absent prior approval of the Court (which, if it
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`is sought, must be done so by joint letter submission no later than the date on which answering
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`claim construction briefs are due), the parties shall not present testimony at the argument, and the
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`argument shall not exceed a total of three hours.
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`12.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`October 29, 2020. The supplemental disclosure to contradict or rebut evidence on the same
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`matter identified by another party is due on or before December 1, 2020. Reply expert reports
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`from the party with the initial burden of proof are due on or before December 18, 2020. No other
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`expert reports will be permitted without either the consent of all parties or leave of the Court.
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`Along with the submissions of the expert reports, the parties shall advise of the dates and times
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`of their experts' availability for deposition. Depositions of experts shall be completed on or
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`before February 12, 2021.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`13.
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`Case Dispositive Motions. All case dispositive motions, an opening brief, and
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`affidavits, if any, in support of the motion shall be served and filed on or before March 26, 2021.
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`Any response thereto shall be filed within 28 days. Any reply to the response shall be filed
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`within days 21 days of the response. No case dispositive motion under Rule 56 may be filed
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`more than ten days before the above date without leave of the Court.
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`14.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion. Any non-dispositive motion should contain the statement
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`required by Local Rule 7 .1.1.
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`15.
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`Pretrial Conference. On September 3, 2021, the Court will hold a Rule 16(e) final
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`pretrial conference in Court with counsel beginning at 9:00 a.m. The parties shall file a joint
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`proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5:00 p.m. on the
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`third business day before the date of the final pretrial conference. Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3( d) for the
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`preparation of the proposed joint final pretrial order.
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`16. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
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`be limited to three in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three pages of argument and may be opposed by a maximum of
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`three pages of argument, and the party making the in limine request may add a maximum of one
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`additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three
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`page submission (and, if the moving party, a single one page reply). No separate briefing shall be
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`submitted on in limine requests, unless otherwise permitted by the Court.
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`17.
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`Jury Instructions. Voir Dire. and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47.l(a)(2) and 51.1 , the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 5:00 p.m. on the third business day before the date of the final pretrial
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`9
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`conference. The parties shall submit simultaneously with filing each of the foregoing four
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`documents in Word or WordPerfect format to rga_civil@ded.uscourts.gov.
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`18.
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`Trial. This matter is scheduled for a five-day jury trial beginning at 9:30 a.m. on
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`September 20, 2021 , with the subsequent trial days beginning at 9:30 a.m. Until the case is
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`submitted to the jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial
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`will be timed, as counsel will be allocated a total number of hours in which to present their
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`respective cases.
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`19.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution.
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