UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`BAUSCH & LOMB, INC.;
`BAUSCH & LOMB IRELAND LIMITED;
`and EYE THERAPIES, LLC,
`
`Plaintiffs,
`
`v.
`
`SLAYBACK PHARMA LLC and
`SLAYBACK PHARMA INDIA LLP,
`
`Defendants.
`
`Civil Action No. 21-16766 (MAS) (DEA)
`
`Initial Scheduling Conference Date:
`February 10, 2022 at 10:00 AM
`
`JOINT DISCOVERY PLAN
`
`Plaintiffs Bausch & Lomb, Inc., Bausch & Lomb Ireland Limited, and Eye Therapies, LLC
`
`(collectively, “Plaintiffs”) and Defendants Slayback Pharma LLC and Slayback Pharma India LLP
`
`(collectively, “Slayback” or “Defendants”) (Plaintiffs and Defendants, collectively the “Parties”)
`
`have conferred and submit the following Joint Discovery Plan, including proposed deadlines for
`
`discovery.
`
`1.
`
`A brief factual statement of the claims or defenses in the action, as well as a brief
`statement of the legal issues in the case.
`
`This patent infringement case arises under 21 U.S.C. § 355 (commonly referred to as “the
`
`Hatch-Waxman Act”) from Slayback’s submission of Abbreviated New Drug Application
`
`(“ANDA”) No. 216361 seeking U.S. Food and Drug Administration (“FDA”) approval to market
`
`brimonidine tartrate ophthalmic solution, 0.025% (“Slayback’s Proposed ANDA Product”) prior
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`to the expiration of United States Patent Nos. 8,293,742 (“the ’742 patent”) and 9,259,425 (“the
`
`’425 patent”) (the ’742 patent and the ’425 patent collectively, “the patents-in-suit”). Bausch &
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`Lomb, Inc. is the registered holder of New Drug Application (“NDA”) No. 208144 for the drug
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`

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`product Lumify®, which the FDA approved on December 22, 2017. In conjunction with NDA No.
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`208144, the ’742 and ’425 patents are listed in the FDA’s Approved Drug Products with
`
`Therapeutic Equivalence Evaluations (the “Orange Book”).
`
`After Plaintiffs received a letter from Slayback notifying Plaintiffs of Slayback’s ANDA
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`(“Slayback’s Notice Letter”), along with notices of certification under 21 U.S.C.
`
`§ 355(j)(2)(A)(vii)(IV) challenging the ’742 and ’425 patents, Plaintiffs filed this action on
`
`September 10, 2021, alleging that Slayback infringed the ’742 and ’425 patents by submitting
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`ANDA No. 216361 to the FDA seeking approval for the commercial marketing of Slayback’s
`
`Proposed ANDA Product before the expiration of the ’742 and ’425 patents. (See ECF No. 1.)
`
`Plaintiffs further allege that Slayback will, through the manufacture, use, import, offer for sale
`
`and/or sale of Slayback’s Proposed ANDA Product directly infringe, contributorily infringe,
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`and/or induce infringement of at least one claim of each of the ’742 and ’425 patents. (Id.)
`
`Accordingly, Plaintiffs seek an order that the date for any approval by the FDA for Slayback’s
`
`Proposed ANDA Product be a date no earlier than the expiration of the ’742 and ’425 patents and
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`that the Court enjoin Slayback from the commercial manufacture, use, import, offer for sale and/or
`
`sale of its generic brimonidine ophthalmic solution until the expiration of the patents-in-suit.
`
`Plaintiffs also seek to have this case declared exceptional under 35 U.S.C. §§ 271(e)(4) and 285.
`
`(Id.)
`
`Slayback waived service of summons and, on November 9, 2021, answered Plaintiffs’
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`Complaint. Slayback asserted several defenses, including that Slayback will not infringe any valid
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`claim of the patents-in-suit, that the claims of the patents-in-suit are invalid, and failure to state a
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`claim upon which relief can be granted. (ECF No. 9). Among its Prayers for Relief, Slayback
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`asked the Court to declare this case exceptional and award Slayback its reasonable attorney’s fees.
`
`(ECF No. 9.)
`
`2
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`

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`2.
`
`A description of all discovery conducted by the parties to date.
`
`The Parties conducted the Rule 26(f) Conference on December 29, 2021. The Parties
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`served initial disclosures pursuant to Fed. R. Civ. P 26(a)(1)(A) on January 12, 2022. Pursuant to
`
`the Local Rules, Slayback produced a copy of its ANDA No. 216361 on November 9, 2021.
`
`Slayback served its First Set of Requests for Production of Documents, Nos. 1-2 on December 29,
`
`2021 and Plaintiffs served a timely response on January 28, 2022. Plaintiffs served their First Set
`
`of Requests for Production of Documents, Nos. 1-2 on January 7, 2022 and Slayback intends to
`
`serve a timely Response on February 7, 2022.
`
`3.
`
`A description of all discovery problems encountered to date, the efforts undertaken
`by the parties to remedy these problems, and the parties’ suggested resolution of the
`problems.
`
`The Parties have not encountered any discovery problems to date.
`
`4.
`
`A description of the parties’ further discovery needs.
`
`The Parties expect to take discovery concerning the subject matter of the claims set forth
`
`in Plaintiffs’ Complaint and the defenses set forth in Defendants’ Answer. The Parties contemplate
`
`serving additional written discovery, including requests for the production of documents and
`
`things, interrogatories, and requests for admission. The Parties also anticipate taking depositions
`
`of party and non-party witnesses. The Parties also anticipate conducting expert discovery.
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`5.
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`The parties’ estimate of the time needed to complete discovery.
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`The Parties estimate that they will need at least 18 months to complete fact and expert
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`discovery.
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`6.
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`A statement regarding whether expert testimony will be necessary, and the parties
`anticipated schedule for retention of experts and submission of their reports.
`
`The Parties expect that expert testimony will be necessary given the highly technical nature
`
`of the subject matter of this lawsuit. The Parties expect expert discovery to commence after
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`3
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`completion of claim construction discovery, entry of the Court’s claim construction order, and
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`completion of fact discovery.
`
`The Parties proposed schedule for expert discovery is identified in Appendix A.
`
`7.
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`A statement regarding whether there should be any limitation placed upon use of any
`discovery device, and if so, the reasons the limitation is sought.
`
`If the Parties determine that privilege logs are necessary, then the Parties agree that the
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`cutoff date for logging privileged documents in this case shall be the date on the face of Slayback’s
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`Notice Letter. In other words, no document dated after August 13, 2021, would need to be logged
`
`on a privilege log in this case, to the extent the Parties deem that a privilege log is necessary.
`
`The Parties agree to be reasonable and cooperative with respect to the number and timing
`
`of discovery requests. The Parties agree to serve all discovery requests, objections and responses
`
`thereto, and all other papers in this case, by e-mail on counsel of record.
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`The Parties agree to cooperate to avoid unnecessary duplication of deposition testimony.
`
`The Parties shall cooperate and use reasonable efforts to arrange for the attendance of any
`
`witness in their employment for depositions to take place remotely via videoconference, without
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`the need for service of process.
`
`The Parties agree that each Rule 30(b)(6) notice shall count as one deposition, regardless
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`of the number of individuals designated by the party receiving the Rule 30(b)(6) notice and
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`deposed by the party that noticed the Rule 30(b)(6) deposition.
`
`The Parties agree to produce documents in single-page TIFF format accompanied by an
`
`image load file. The production will be placed on appropriate media based on the volume of
`
`information to be produced. Documents that are kept in OCR format will be produced in OCR
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`format. The Parties will cooperate to agree on the precise format and fields of documents produced
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`in single page TIFF format.
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`4
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`The Parties disagree on the format for the production of electronic documents
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`submitted to the U.S. FDA and have set forth their positions on this issue below.
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`DEFENDANTS’ POSITION: Defendants served a Request for Production asking
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`Plaintiffs to produce the documents that Plaintiffs submitted to the U.S. FDA with respect to
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`Plaintiffs’ IND and NDA for Lumify®, the branded drug at issue in this case. Defendants
`
`requested that to the extent these documents were submitted to the U.S. FDA as electronic
`
`modules, Plaintiffs must produce these documents in the same form, i.e., as electronic modules.
`
`Plaintiffs refused. The Parties conducted a meet and confer on this issue on February 1, 2022, and
`
`this issue is ripe for discussion at the February 10, 2022 Scheduling Conference.
`
`To accommodate Plaintiffs’ concern that it is not feasible to redact patient confidential
`
`information from an electronic module, Defendants agreed that any discreet submodule that
`
`contained patient confidential information need not be produced in native electronic form. To
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`accommodate Plaintiffs’ concern about redacting irrelevant information from electronic modules,
`
`Defendants agreed that production of an electronic module or submodule would not be deemed an
`
`admission of relevance or admissibility. At the meet and confer Plaintiffs were unable to identify
`
`any Court Order or Confidentiality Agreement that would prevent the production of the electronic
`
`modules.
`
`Defendants’ request that Plaintiffs produce these electronic modules in the same form that
`
`these electronic modules are kept in the ordinary course of business is consistent with Fed.R.Civ.P.
`
`34(b)(2)(E)(i). Moreover, electronic modules are easy to use by a reviewer with basic computer
`
`skills, well organized, typically contain a hyperlinked index, and documents that reference other
`
`documents typically contain hyperlinks leading the reviewer directly to those other documents.
`
`The electronic module format makes it efficient for the U.S. FDA to review IND and NDA
`
`submissions and their production to Defendants as electronic modules is consistent with the goals
`
`5
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`of the Federal Rules. See Committee Note on Rules –2006 Amendment, Subdivision (b) to Rule
`
`34 (“Specification of the desired form or forms may facilitate the orderly, efficient, and cost-
`
`effective discovery of electronically stored information.”) (emphasis added).
`
`The electronic modules already exist in an easy to use format. Plaintiffs’ proposal -- to
`
`provide the information as single page TIFFs and a load file -- would require Defendants to enlist
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`the services of a sophisticated electronic document vendor who would need to reconstruct the
`
`documents from the deconstructed modules. And even so, the reconstructed documents would
`
`not be “point and click” and would not be hyperlinked. The reconstructed documents would be
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`much more difficult to review, making it easy for Defendants to overlook important information.
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`Plaintiffs and Plaintiffs’ trial counsel both have ready access to any electronic modules in
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`Plaintiffs’ possession, custody or control and Defendants’ trial counsel are only asking to be given
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`an even playing field.
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`As to Plaintiffs’ concern about confidentiality and stamping, it is routine to produce and
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`review electronic documents (such as Excel spreadsheets) in their native electronic form without
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`Bates numbers or confidentiality designations on the native electronic documents.
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`Finally, Defendants are not asking Plaintiffs to translate the electronic modules into a
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`different form that will be easier to review. The electronic modules kept by Plaintiffs are already
`
`constructed and organized so that they are easy to use – and that is how they should be produced.
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`PLAINTIFFS’ POSITION: Defendants requested production of documents that Plaintiffs
`
`submitted to the FDA in connection with IND No. 108524 and NDA No. 208144 be “produced to
`
`Defendants as electronic modules in addition to being produced as individually Bates numbered
`
`pages.” Plaintiffs agreed that they would produce these documents as individually Bates numbered
`
`pages, but Plaintiffs cannot agree to produce these documents as electronic modules, which would
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`6
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`necessarily mean producing these documents without confidentiality designations and without
`
`Bates numbering.
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`Defendants allege that their request “that Plaintiffs produce these electronic modules in the
`
`same format that these electronic modules are kept in the ordinary course of business is consistent
`
`with Fed. R. Civ. P. 34(b)(2)(E)(i).” As an initial matter, Plaintiffs are still investigating whether
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`these documents are in fact kept in the form of electronic modules in the ordinary course of
`
`business. Even if they are kept as electronic modules, Federal Rule of Civil Procedure
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`34(b)(2)(E)(i) does not mandate that these documents be produced in the form of an electronic
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`module. Indeed, IND and NDA documents are routinely produced as single-page TIFF images
`
`accompanied by an image load file. Defendants have failed to explain the need to depart in this
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`particular case from the standard practice in Hatch-Waxman litigation.
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`Defendants’ request for production of these materials as electronic modules presents
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`significant confidentiality concerns because materials produced in their native form cannot be
`
`marked highly confidential subject to a Discovery Confidential Order, protective order, or
`
`confidentiality agreement. This is problematic because, inter alia, when documents produced in
`
`their native electronic form are downloaded, stored electronically, printed, emailed, or otherwise
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`distributed—which they would inevitably be—their confidentiality will not be apparent. By their
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`nature, regulatory submissions contain highly confidential information, including both technical
`
`and HIPAA information, and Plaintiffs are thus concerned that production in this format presents
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`a significant risk that confidential information may not be appropriately protected. Moreover,
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`production in native format negates the Parties’ ability to unambiguously identify a document,
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`which is normally done by Bates number, and could lead to confusion at deposition or trial.
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`Defendants’ request for production of these materials as electronic modules, in native form,
`
`is also incompatible with the requirements of federal, state, or local privacy laws regarding patient
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`7
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`confidentiality, which may require redaction of parts of the materials and therefore makes it
`
`impossible to produce them in native form. The materials may also need to be redacted to the
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`extent portions are not relevant to any claim or defense in the action or are protected by the terms
`
`of a protective order or confidentiality agreement between Plaintiffs and third parties. These
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`documents should only need to be produced in single-page TIFF format (which would allow for
`
`redactions) accompanied by an image load file and organized as they are kept in the ordinary
`
`course of business.
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`Further, Defendants request for production of materials concerning other non-relevant
`
`products is entirely contrary to the Federal Rules of Civil Procedure. The plain language of Rule
`
`26 indicates that non-relevant information is not discoverable. Fed. R. Civ. P. 26(b)(1). And
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`Courts in Hatch-Waxman cases have routinely declined to force a party to produce non-relevant
`
`information concerning other drug products such as the type Defendants seek to force Plaintiffs to
`
`produce here.
`
`While Plaintiffs disagree with Defendants’ argument that the IND and NDA cannot be
`
`efficiently reviewed when produced as TIFF images, Plaintiffs are willing to produce the IND and
`
`the NDA as TIFF images with load files containing the metadata necessary for Slayback to identify
`
`the specific modules in which the documents are contained. Plaintiffs will also produce these
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`documents in the manner in which they are organized in the ordinary course of business. This
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`option will provide Defendants with the information that they purportedly need to efficiently
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`review the IND and NDA while preventing any risk of inadvertent disclosure of highly confidential
`
`information. This approach would also allow Plaintiffs to redact patient confidential information
`
`or information that is not relevant to the parties’ claims and defenses. Effectively, with such
`
`metadata, Slayback (more particularly, its e-discovery vendor) should easily be able to re-create
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`the folder structure of the IND and NDA files, as they existed in the ordinary course of business;
`
`8
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`and, importantly, these versions would be Bates stamped and have confidentiality designations,
`
`mitigating Plaintiffs’ above-outlined concerns.
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`As an alternative, Plaintiffs are investigating the possibility of providing Slayback access
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`to the IND and the NDA (except for any portions containing patient health information or
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`information that is not relevant to any parties’ claims or defenses) in a virtual data room with view
`
`only access. In the virtual data room, Slayback would be permitted to view the IND and the NDA
`
`in the electronic module format to the extent Plaintiffs keeps such documents in that format in the
`
`ordinary course of business. If Slayback desires to print any portion of the IND and the NDA,
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`however, Slayback would be able to print the copy of the document produced as a TIFF image that
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`has been stamped with appropriate Bates numbers and confidentiality designation.
`
`8.
`
`A description of any special discovery needs (i.e., videotape/telephone depositions,
`problems with out-of-state witnesses or documents, or discovery of digital
`information).
`
`The Parties anticipate that, given the COVID pandemic, depositions will be taken remotely
`
`via videoconference. The Parties shall cooperate and use reasonable efforts to arrange for the
`
`depositions of all party witnesses to take place at mutually agreeable times and seek the assistance
`
`of the Court to the extent an agreement cannot be reached.
`
`9.
`
`Proposed modification of the obligations or deadlines set forth in the Local Patent
`Rules to ensure that they are suitable for the circumstances of this case.
`
`See Appendix A (the Parties’ proposed schedule) below.
`
`10.
`
`The scope and timing of any claim construction discovery including disclosure of and
`discovery from any expert witness permitted by the court.
`
`See Appendix A (the Parties’ proposed schedule) below.
`
`9
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`

`

`11.
`
`The format of the Claim Construction Hearing, including whether the Court will hear
`live testimony, the order of presentation, and the estimated length of the hearing.
`
`The Parties disagree on the need for live expert testimony, the length of the hearing, and
`
`the order of presentation. Plaintiffs anticipate the need for live expert testimony, believe that a full
`
`day will be needed for the hearing, and propose that Plaintiffs present the entirety of their
`
`arguments
`
`and
`
`testimony
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`first,
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`followed by Defendants’
`
`entire
`
`arguments
`
`and
`
`testimony. Defendants do not anticipate the need for live expert testimony, believe that the hearing
`
`can be completed in three and one half hours, and propose that the hearing proceed term by
`
`term. The Parties will provide the Court with their updated positions on these issues after Claim
`
`Construction submissions when the Parties provide a proposed schedule for the Claim
`
`Construction Hearing pursuant to Local Patent Rule 4.6.
`
`12.
`
`How the parties intend to educate the Court on the patent(s) at issue.
`
`To the extent necessary, the Parties will present a technology tutorial on the day of the
`
`Claim Construction Hearing.
`
`13.
`
`The need for any discovery confidentiality order and a schedule for submission.
`
`The Parties expect to submit a proposed Discovery Confidentiality Order, consistent with
`
`Appendix S of the Local Rules of the District of New Jersey, for entry by the Court by the date
`
`identified in Appendix A. The Parties note that the patents-in-suit in this action are the subject of
`
`inter partes reviews (“IPRs”) presently pending before the Patent Trial and Appeal Board
`
`(“PTAB”) of the United States Patent and Trademark Office (“U.S. PTO”) (i.e. IPR2022-00142
`
`and IPR2022-00146, the “related IPRs”). The Parties will confer regarding Defendants’ request
`
`for a cross-use agreement to allow for the use of confidential or highly confidential material
`
`produced in this litigation to be used by the Parties in the related IPRs.
`
`10
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`14.
`
`The availability and timing of production of the items specified in Local Patent Rule
`2.1(a)(6).
`
`(a) Invention records (including laboratory notebooks and analytical test
`results);
`
`Plaintiffs will produce the documents required under L. Pat. R. 3.2 and 3.6(h) with their
`
`Disclosure of Asserted Claims and Infringement Contentions to the extent they are within
`
`Plaintiffs’ possession, custody, or control.
`
`Plaintiffs will produce any additional invention records, to the extent they exist and are
`
`within Plaintiffs’ possession, custody, or control, during fact discovery and at a reasonable time
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`before the agreed-upon date for any inventor deposition.
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`(b) ANDA product research and development documents;
`
`To the extent within the scope of discovery pursuant to Federal Rule of Civil Procedure
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`26(b)(1), Defendants will produce any ANDA product research and development documents that
`
`are not part of Defendants’ ANDA during fact discovery and no later than 30 days before the
`
`agreed-upon dates for any depositions of Defendants’ employees.
`
`(c) ANDA product samples;
`
`To the extent within the scope of discovery pursuant to Federal Rule of Civil Procedure
`
`26(b)(1), Defendants will produce any ANDA product samples on or before May 31, 2022, but if
`
`that date is not feasible, as soon as practicable thereafter. To the extent that Defendants are unable
`
`to produce the ANDA product samples by May 31, 2022, Defendants will immediately notify
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`Plaintiffs of the delay, the reason(s) for the delay, and the target date for production of the ANDA
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`product samples.
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`11
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`(d) The date of conception and the date of reduction to practice for each
`patent asserted in the action;
`
`Plaintiffs will produce relevant information regarding the date of conception and the date
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`of reduction to practice asserted for each asserted claim of each patent asserted in this action, on
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`or before the date of service for Plaintiffs’ Disclosure of Infringement Contentions pursuant to
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`Local Patent Rule 3.6.
`
`Plaintiffs will produce IND No. 108524 and NDA No. 208144 for Lumify® with their
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`Disclosure of Asserted Claims and Infringement Contentions.
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`(e) Each inventor’s availability for deposition in the matter;
`
`Plaintiffs will make Dr. Gerald Horn available for a one day deposition (for a maximum of
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`seven hours on the record) in this matter on a date agreeable to the Parties and Dr. Horn.
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`Defendants have requested that Dr. Horn be produced for deposition on or before the date for the
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`completion of claim construction discovery (currently proposed as August 4, 2022). The Parties
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`agree to meet and confer on this issue after the date for Exchange of Proposed Terms for
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`Construction pursuant to L. Pat. R. 4.1(a) (currently proposed as May 12, 2022); and will seek the
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`Court’s assistance if an agreement cannot be reached.
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`Defendants will not contact Dr. Horn directly, and Plaintiffs’ litigation counsel will accept
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`service on behalf of Dr. Horn. Plaintiffs will produce any discoverable documents or information
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`within Dr. Horn’s possession, custody or control at a reasonable time before Dr. Horn’s deposition.
`
`(f) Availability of foreign witnesses for deposition and foreign documents;
`
`The Parties have not yet identified any foreign witnesses for deposition or foreign
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`documents. The Parties will meet and confer regarding any such witnesses or documents, if and/or
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`when any such witnesses or documents are identified.
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`12
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`(g) Whether there is a 30-month stay and if so, when it ends;
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`The 30-month stay will expire on or about February 16, 2024.
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`(h) A date for substantial completion of document production and a
`method for determining compliance;
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`The Parties expect to substantially complete their document productions no later than sixty
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`(60) days before the close of fact discovery.
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`(i) Any other issues or matters that a party believes are time sensitive.
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`At this time, the Parties do not have any time sensitive issues or matters.
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`Respectfully submitted,
`
`Dated: February 3, 2022
`
`s/ William P. Deni, Jr.
`William P. Deni, Jr.
`J. Brugh Lower
`GIBBONS P.C.
`One Gateway Center
`Newark, New Jersey 07102
`Tel: (973) 596-4500
`Fax: (973) 596-0545
`wdeni@gibbonslaw.com
`jlower@gibbonslaw.com
`
`Of Counsel:
`
`Bryan C. Diner
`Justin J. Hasford
`FINNEGAN, HENDERSON,
`FARABOW, GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`Tel: (202) 408-4000
`
`Attorneys for Plaintiffs
`Bausch & Lomb, Inc.,
`Bausch & Lomb Ireland Limited,
`and Eye Therapies, LLC
`
`s/ Louis H. Weinstein
`Anandita Vykarnam
`Louis H. Weinstein
`WINDELS MARX LANE &
`MITTENDORF, LLP
`One Giralda Farms
`Madison, NJ 07940
`(973) 966-3200
`avyakarnam@windelsmarx.com
`lweinstein@windelsmarx.com
`
`Attorneys for Defendants
`Slayback Pharma LLC and
`Slayback Pharma India LLP
`
`13
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`NO.
`1
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`2
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`13
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`14
`
`APPENDIX A
`EVENT
`Plaintiffs’ Disclosure of Asserted Claims
`pursuant to L. Pat. R. 3.6(b)
`Submission of Proposed Discovery
`Confidentiality Order
`Defendants’ Invalidity Contentions and
`accompanying production pursuant to
`L. Pat. R. 3.6(c)-(d)
`Defendants’ Non-Infringement Contentions and
`accompanying production pursuant to
`L. Pat. R. 3.6(e)-(f)
`Deadline to add parties and/or amend pleadings
`Plaintiffs’ Disclosure of Asserted Claims and
`Infringement Contentions and accompanying
`production pursuant to L. Pat R. 3.6(g)-(h)
`Plaintiffs’ Response to Invalidity Contentions
`pursuant to L. Pat. R. 3.6(i)
`Exchange of Proposed Terms for Construction
`pursuant to L. Pat. R. 4.1(a); thereafter the
`Parties will meet and confer pursuant to
`L. Pat. R. 4.1(b)
`Exchange of Preliminary Claim Constructions
`and identification of evidence, pursuant to L.
`Pat. R. 4.2(a)-(b), including the name of any
`witness, including experts, and a description of
`that witness’ proposed testimony that includes a
`listing of any opinions to be rendered in
`connection with claim construction
`Exchange of identification of all intrinsic and
`extrinsic evidence for opposing proposed claim
`constructions, pursuant to L. Pat. R. 4.2(c);
`thereafter the Parties will meet and confer
`pursuant to L. Pat, R. 4.2(d)
`Submit Joint Claim Construction and
`Prehearing Statement, pursuant to L. Pat. R. 4.3
`Completion of Claim Construction Discovery,
`pursuant to L. Pat. R. 4.4
`Opening Markman Submissions, pursuant to
`L. Pat. R. 4.5(a)
`Completion of Expert Discovery related to
`Claim Construction, pursuant to L. Pat. R.
`4.5(b)
`
`14
`
`PROPOSED DATE
`February 17, 2022
`
`February 24, 2022
`
`March 14, 2022
`
`March 14, 2022
`
`March 15, 2022
`
`April 28, 2022
`
`April 28, 2022
`
`May 12, 2022
`
`June 2, 2022
`
`June 16, 2022
`
`July 5, 2022
`
`August 4, 2022
`
`August 23, 2022
`
`September 22, 2022
`
`

`

`Responding Markman Submissions pursuant to
`L. Pat. R. 4.5(c), with any expert declarations
`limited to those experts who submitted an
`opening expert declaration pursuant to L. Pat.
`R. 4.5(a)
`Submission of proposed schedule for Claim
`Construction Hearing, pursuant to L. Pat. R. 4.6
`Substantial completion of document production
`
`Close of fact discovery
`
`Disclosure of reliance on advice of counsel
`Exchange Opening Expert Reports on issues for
`which the party bears the burden of proof
`Exchange Rebuttal Expert Reports (including
`Plaintiffs’ expert reports on any objective
`indicia of nonobviousness)
`Exchange Reply Expert Reports (including
`Defendants’ responsive expert reports to
`Plaintiffs’ expert reports on any objective
`indicia of nonobviousness)
`Close of Expert Discovery
`
`Deadline to File Dispositive Motions
`Submission of Proposed Joint Final Pretrial
`Order
`Final Pretrial Conference
`
`October 25, 2022
`
`November 8, 2022
`Sixty (60) days before close of
`fact discovery
`TBD by Court following
`Markman proceedings
`Thirty (30) days after entry of
`Court’s claim construction order
`Sixty (60) days after close of fact
`discovery
`Sixty (60) days after exchange of
`Opening Expert Reports
`
`Forty-five (45) days after
`exchange of Rebuttal Expert
`Reports
`Sixty (60) days after exchange of
`Reply Expert Reports
`Thirty (30) days after close of
`expert discovery
`TBD by Court
`
`TBD by Court
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`15
`
`