Revised January 19, 2024
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
[PLAINTIFF], )
)
Plaintiff, )
)
v. ) C.A. No. 00-000-JLH
)
[DEFENDANT], )
)
Defendant. )
SCHEDULING ORDER [PATENT]
This ___ day of , 20___, the Court having conducted an initial
scheduling conference pursuant to Federal Rule of Civil Procedure 16(b) and 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 HEREBY ORDERED that:
1. Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. Unless
otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
Federal Rule of Civil Procedure 26(a)(1) within five days of the date the Court enters this Order.
If they have not already done so, the parties are to review the Court’s Default Standard for
Discovery, Including Discovery of Electronically Stored Information (‘‘ESI”), which is posted at
https://www.ded.uscourts.gov/default-standard-discovery and is incorporated herein by reference.
2. 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 ____________,
20___. Such motions must follow the provisions of Paragraphs 8(g) and 9.
3. 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 the Court enters this Order.
Should counsel be unable to reach an agreement on a proposed form of order, counsel must follow
the provisions of Paragraph 8(g) below.
Any proposed protective order must include the following paragraph:
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 “confidential” [the
parties should list any other level of designation, such as “highly
confidential,” which may be provided for in the protective order]
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.
4. Papers and Proceedings Under Seal. In accordance with section G of the Revised
Administrative Procedures Governing Filing and Service by Electronic Means, a redacted version
of any sealed document shall be filed electronically within seven days of the filing of the sealed
document.
Should any party intend to request to seal or redact all or any portion of a transcript of a
court proceeding (including a teleconference), such party should expressly note that intent at the
start of the court proceeding. Should any party subsequently choose to make a request for sealing
or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
for sealing/redaction, and include as attachments (1) a copy of the complete transcript highlighted
so the Court can easily identify and read the text proposed to be sealed/redacted, and (2) a copy of
the proposed redacted/sealed transcript. With their request, the party seeking redactions must
demonstrate why there is good cause for the redactions and why disclosure of the redacted material
would work a clearly defined and serious injury to the party seeking redaction.
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5. Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
briefs and any other document filed in support of any briefs (i.e., appendices, exhibits, declarations,
affidavits, etc.). This provision also applies to papers filed under seal. All courtesy copies shall
be double-sided.
6. ADR Process. Magistrate Judges will no longer engage in alternative dispute
resolution in patent cases. See District of Delaware Standing Order No. 2022-2, dated March 14,
2022.
7. [Eliminate this paragraph in ANDA cases] Disclosures. Absent agreement among
the parties, and approval of the Court:
(a) By _______________, 20___, Plaintiff 1 shall identify the accused
product(s), including accused methods and systems, and its damages model, as well as the asserted
patent(s) that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the file
history for each asserted patent.
(b) By _______________, 20___, Defendant shall produce core technical
documents related to the accused product(s), sufficient to show how the accused product(s)
work(s), including but not limited to non-publicly available operation manuals, product literature,
schematics, and specifications. Defendant shall also produce sales figures for the accused
product(s).
(c) By _______________, 20___, Plaintiff shall produce an initial claim chart
relating each known accused product to the asserted claims each such product allegedly infringes.
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For purposes of this Scheduling Order, Plaintiff and Defendant are defined as set forth in
the Default Standard for Discovery, Including Discovery of Electronically Stored Information
(“ESI”), ¶ 4.
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(d) By _______________, 20___, Defendant shall produce its initial invalidity
contentions for each asserted claim, as well as the known related invalidating references.
(e) By _______________, 20___, Plaintiff shall provide final infringement
contentions.
(f) By _______________, 20___, Defendant shall provide final invalidity
contentions.
8. Discovery. Unless otherwise ordered by the Court or agreed to by the parties, the
limitations on discovery set forth in the Federal Rules and Local Rule 26.1 shall be observed.
(a) Discovery Cut Off. All discovery in this case shall be initiated so that it
will be completed on or before __________, 20___.
(b) Document Production. Document production shall be substantially
complete by __________, 20___.
(c) Requests for Admission. A maximum of ___ requests for admission are
permitted for each side.
(d) Interrogatories.
i. A maximum of ___ interrogatories, including contention
interrogatories, are permitted for each side.
ii. The Court encourages the parties to serve and respond to contention
interrogatories early in the case. In the absence of agreement among the parties, contention
interrogatories, if filed, shall first be addressed by the party with the burden of proof. The adequacy
of all interrogatory answers shall be judged by the level of detail each party provides (i.e., the more
detail a party provides, the more detail a party shall receive).
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(e) Depositions.
i. Limitation on Hours for Deposition Discovery. Each side is limited
to a total of ___ hours of taking testimony by deposition upon oral examination.
ii. Location of Depositions. Any party or representative (officer,
director, or managing agent) of a party filing a civil action in this Court must ordinarily be required,
upon request, to submit to a deposition at a place designated within this district. Exceptions to this
general rule may be made by order of the Court. A defendant who becomes a counterclaimant,
cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court.
(f) Disclosure of Expert Testimony.
i. Expert Reports. For the party who has 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 __________, 20___. The supplemental disclosure to contradict or rebut evidence on the
same matter identified by another party is due on or before __________, 20___. Reply expert
reports from the party with the initial burden of proof are due on or before __________, 20___.
No other expert reports will be permitted without either the consent of all parties or leave of the
Court. Along with the submissions of the expert reports, the parties shall advise of the dates and
times of their experts’ availability for deposition.
ii. Expert Report Supplementation. The parties agree they [will]/[will
not] permit expert declarations to be filed in connection with motions briefing (including case-
dispositive motions).
iii. Objections to Expert Testimony.
[For ANDA cases] To the extent any objection to expert testimony is made
pursuant to the principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
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579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion no later
than fourteen days after the close of expert discovery, unless otherwise ordered by the Court.
Briefing will be presented pursuant to the Court’s Local Rules.
[For non-ANDA cases] To the extent any objection to expert testimony is
made pursuant to the principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 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. Briefing on such motions is subject to the page limits set out in connection with briefing
of case dispositive motions.
(g) Discovery Matters and Disputes Relating to Protective Orders.
i. The following procedures will apply to discovery matters and
protective order disputes unless and until such matters are referred to a Magistrate Judge (who may
specify their own procedures). Any discovery motion filed without first complying with the
following procedures will be denied without prejudice to renew pursuant to these procedures.
ii. Should counsel find, after good faith efforts—including verbal
communication among Delaware and Lead Counsel for all parties to the dispute—that they are
unable to resolve a discovery matter or a dispute regarding a protective order, the moving party
(i.e., the party seeking relief from the Court) should file a “Motion for Teleconference To Resolve
[Discovery/Protective Order] Disputes.” The suggested text for this motion can be found in Judge
Hall’s section of the Court’s website, in the “Forms” tab.
iii. The Court will thereafter order a discovery telephone conference
and deadlines for submissions. On the date set by court order, generally not less than seventy-two
hours prior to the conference (excluding weekends and holidays), the party seeking relief shall file
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with the Court a letter, not to exceed three pages, outlining the issues in dispute and its position on
those issues. This submission shall include: (1) a proposed order, attached as an exhibit, setting
out the nature of the relief requested; and (2) to the extent that the dispute relates to responses to
certain discovery requests, an attached exhibit (or exhibits) containing the requests and the
responses in dispute. On the date set by court order, generally not less than forty-eight hours prior
to the conference (excluding weekends and holidays), any party opposing the application for relief
may file a letter, not to exceed three pages, outlining that party’s reasons for its opposition.
iv. Each party shall submit two courtesy copies of its letter and any
other document filed in support to the Clerk’s Office within one day of e-filing. All courtesy copies
shall be double-sided.
v. Should the Court find further briefing necessary upon conclusion of
the conference, the Court will order it. Alternatively, the Court may choose to resolve the dispute
prior to the conference and cancel the conference.
9. Motions to Amend / Motions to Strike.
(a) Any motion to amend (including a motion for leave to amend) a pleading
or any motion to strike any pleading shall be made pursuant to the discovery dispute procedure set
forth in Paragraph 8(g), above.
(b) Any motion to amend shall attach the proposed amended pleading as well
as a “blackline” comparison to the prior pleading. Any motion to strike shall attach the document
sought to be stricken.
10. Technology Tutorials. Although technology tutorials are not required by the Court,
they are appreciated and, if any party chooses to file such a tutorial, it shall be submitted on or
before the date that the Joint Claim Construction Brief is filed.
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11. Claim Construction Issue Identification. On __________, 20___, the 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 two weeks prior to service of the opening claim construction brief.
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. If a party proposes a construction of a term to be its “plain and ordinary” meaning,
the party must explain what that meaning is and how it differs from the other party’s proposed
construction.
12. Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
brief, not to exceed 20 pages, on __________, 20___. The Defendant shall serve, but not file, its
answering brief, not to exceed 30 pages, on __________, 20___. The Plaintiff shall serve, but not
file, its reply brief, not to exceed 20 pages, on __________, 20___. The Defendant shall serve,
but not file, its sur-reply brief, not to exceed 10 pages, on __________, 20___. No later than
__________, 20___, the parties shall file a Joint Claim Construction Brief. The parties shall copy
and paste their unfiled briefs into one brief, with their positions on each claim term in sequential
order, in substantially the form below.
JOINT CLAIM CONSTRUCTION BRIEF
I. Agreed-Upon Constructions
II. Disputed Constructions
[TERM 1]
1. Plaintiff’s Opening Position
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2. Defendant’s Answering Position
3. Plaintiff’s Reply Position
4. Defendant’s Sur-Reply Position
[TERM 2]
1. Plaintiff’s Opening Position
2. Defendant’s Answering Position
3. Plaintiff’s Reply Position
4. Defendant’s Sur-Reply Position
For each term in dispute, there should be a table setting forth the term in dispute and the parties’
competing constructions. If a party proposes a construction of a term to be its “plain and ordinary”
meaning, the party must explain what that meaning is and how it differs from the other party’s
proposed construction. The parties’ briefing must also explain how resolution of the dispute is
relevant to an issue in the case. The parties need not include any general summaries of the law
relating to claim construction. The parties shall include a joint appendix that contains a copy of
the patent(s) at issue, all relevant intrinsic evidence, and any other evidence cited in the parties’
briefing.
No earlier than __________________, 20__ [no earlier than three weeks before the claim
construction hearing and no later than one week before the claim construction hearing], Delaware
and Lead counsel (i.e., those attorneys that will be leading trial) for the parties shall meet and
confer and file an amended Joint Claim Construction Chart that sets forth all agreed-upon
constructions and all terms that remain in dispute. The meet and confer shall focus on an attempt
to reach agreement on any remaining disputed terms where possible and to focus the dispute over
the remaining terms in light of the Joint Claim Construction Brief. The amended Joint Claim
Construction Chart shall be filed with a letter identifying by name each individual who participated
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in the meet and confer, when and how that meet and confer occurred, and how long it lasted. If
no additional agreements on constructions were reached or if no dispute was narrowed, the letter
shall so state. The parties shall e-mail a copy of the amended Joint Claim Construction Chart in
Microsoft Word format to
[email protected].
13. Hearing on Claim Construction. Beginning at _________ on ____________,
20___, the Court will hear argument on claim construction. The parties need not include any
general summaries of the law relating to claim construction in their presentations to the Court. The
parties shall notify the Court, by joint letter submission, no later than the date on which their Joint
Claim Construction brief is filed (i) whether they request leave to present testimony at the hearing;
and (ii) the amount of time they are requesting be allocated to them for the hearing.
Provided that the parties comply with all portions of this Scheduling Order, and any other
orders of the Court, the parties should anticipate that the Court will issue its claim construction
order within sixty days of the conclusion of the claim construction hearing. If the Court is unable
to meet this goal, it will advise the parties no later than sixty days after the conclusion of the claim
construction hearing.
14. Supplementation. Absent agreement among the parties, and approval of the Court,
no later than _______________, 20___, the parties must finally supplement, inter alia, the
identification of all accused products and of all invalidity references.
15. Interim Status Report. On __________, 20___, counsel shall submit a joint letter
to the Court with an interim report on the nature of the matters in issue and the progress of
discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status conference.
16. Case Dispositive Motions.
[For ANDA Cases] Absent agreement between the parties, and prior approval from the
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Court, the Court will not hear case dispositive motions in ANDA cases.
[For non-ANDA cases] (a) All case dispositive motions, an opening brief, and
affidavits, if any, in support of the motion shall be served and filed on or before __________,
20___ [calculated so that briefing is completed approximately four months prior to the pretrial
conference]. Briefing will be presented pursuant to the Court’s Local Rules. No case dispositive
motion under Rule 56 may be filed more than ten days before the above date without leave of the
Court.
(b) Concise Statement of Facts Requirement. Any motion for summary
judgment shall be accompanied by a separate concise statement, not to exceed six pages, which
details each material fact that the moving party contends is essential for the Court’s resolution of
the summary judgment motion (not the entire case) and as to which the moving party contends
there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered paragraph
and shall be supported by specific citation(s) to the record.
Any party opposing the motion shall include with its opposing papers a response to the
moving party’s concise statement, not to exceed six pages, which admits or disputes the facts set
forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To the extent a
fact is disputed, the basis of the dispute shall be supported by specific citation(s) to the record.
Failure to respond to a fact presented in the moving party’s concise statement of facts shall indicate
that fact is not in dispute for purposes of summary judgment. The party opposing the motion may
also include with its opposing papers a separate concise statement, not to exceed four pages, which
sets forth material facts as to which the opposing party contends there is a genuine issue to be tried.
Each fact asserted by the opposing party shall also be set forth in a separate numbered paragraph
and shall be supported by specific citation(s) to the record.
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(c) The moving party shall include with its reply papers a response to the
opposing party’s concise statement of facts, not to exceed four pages, on a paragraph-by-paragraph
basis.
(d) Page limits combined with Daubert motion page 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 40 pages for all opening briefs, a combined total of 40 pages
for all answering briefs, and a combined total of 20 pages for all reply briefs. 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 pages permitted for all case dispositive
and Daubert motions shall be increased to 50 pages for all opening briefs, 50 pages for all
answering briefs, and 25 pages for all reply briefs for each side. 2
(e) Hearing. The Court will hear argument on all pending case dispositive and
Daubert motions on __________, 20___ beginning at __________ [a date approximately two
months prior to the requested pretrial conference date]. Unless otherwise ordered by the Court,
each side will be allocated a total of forty-five minutes to present its argument on all pending
motions.
17. 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 7.1.1.
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The parties must work together to ensure that the Court receives no more than a total
of 250 pages (i.e., 50 + 50 + 25 regarding one side’s motions, and 50 + 50 + 25 regarding
the other side’s motions) of briefing on all case dispositive motions and Daubert motions that
are covered by this scheduling order and any other scheduling order entered in any related case
that is proceeding on a consolidated or coordinated pretrial schedule.
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18. Amendments to the Scheduling Order. Any stipulation or other request to amend
the scheduling order shall include a chart that lists each court-ordered event with a deadline/date
(even if it is not being changed), the current deadline/date, and the new proposed deadline/date.
19. IPRs/PGRs. Any party asserting a patent must file a “Notice of IPR/PGR Event”
within seven days of any of the following actions taken on that patent: petition for inter partes
review/post grant review (regardless of whether a party filed the petition), institution decision,
final written decision, appeal to the Federal Circuit, Federal Circuit decision. The Notice must list
the action taken, the affected claims, the dates of any expected further action by the PTAB, and
the status of all other pending IPRs/PGRs.
20. 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 side shall be
limited to three in limine requests, unless otherwise permitted by the Court. The in limine 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, may be opposed by a maximum of three pages of
argument, and the side making the in limine request may add a 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 submission (and, if
the moving party, a single one page reply), unless otherwise ordered by the Court. No separate
briefing shall be submitted on in limine requests, unless otherwise permitted by the Court.
21. Pretrial Conference. On _______________, 20___, the Court will hold a pretrial
conference in Court with counsel beginning at __________. Unless otherwise ordered by the
Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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joint proposed final pretrial order in compliance with Local Rule 16.3(c) not later than seven days
before the pretrial conference. Unless otherwise ordered by the Court, the parties shall comply
with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for the preparation of the joint proposed
final pretrial order.
The proposed final pretrial order shall contain a table of contents. The parties shall provide
the Court two double-sided courtesy copies of the joint proposed final pretrial order and all
attachments.
22. Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed
voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
forms seven days before the final pretrial conference. This submission shall be accompanied
by a courtesy copy containing electronic files of these documents in Microsoft Word format,
which should be submitted by e-mail to
[email protected].
23. Trial. This matter is scheduled for a ___ 3 day [jury/bench] trial beginning at
9:30 a.m. on _______________, 20___, with the subsequent trial days beginning at 9:00 a.m.
Until the case is submitted to the jury for deliberations, the jury will be excused each day at
5:00 p.m. The trial will be timed, and counsel will be allocated a total number of hours in which
to present their respective cases.
24. [Eliminate this paragraph in ANDA cases] Judgment on Verdict and Post-Trial
Status Report. Within seven days after a jury returns a verdict in any portion of a jury trial, the
parties shall jointly submit a form of order to enter judgment on the verdict. At the same time,
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Five days (i.e., about ten to thirteen hours per side) is the presumptive length of a patent jury
trial. If the parties think it is obvious that this will not be enough, they may put in a different length
and should be prepared to explain why at the Rule 16 conference. A final decision on the precise
length of trial will not be made before the final pretrial conference.
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the parties shall submit a joint status report, indicating among other things how the case should
proceed and listing any post-trial motions each party intends to file.
25. Post-Trial Motions.
[For ANDA cases] The parties should address the post-trial briefing schedule and page
limits in the proposed final pretrial order.
[For non-ANDA cases] Unless otherwise ordered by the Court, all sides are limited to a
maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10 pages of reply briefs
relating to any post-trial motions filed by that side, no matter how many such motions are filed.
The Honorable Jennifer L. Hall
UNITED STATES DISTRICT JUDGE
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Revised January 19, 2024
[Counsel Shall Provide a Chart of All Relevant Deadlines]
EVENT DEADLINE
