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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________
Plaintiff(s),
v. Civil Action No.
__________-FDS
________________________
Defendant(s).
INITIAL SCHEDULING ORDER
SAYLOR, J.
This Scheduling Order is intended to provide a reasonable timetable for discovery and
motion practice in order to help ensure a fair and just resolution of this matter without undue
expense or delay.
Timetable for Discovery and Motion Practice
Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure and Local Rule 16.1(F)
and 16.6, it is hereby ORDERED that:
1. Preliminary Disclosures
a. Rule 26(a) Disclosures: The parties will make their Initial Disclosures no
later than .
b. Preliminary Infringement Disclosure: No later than ____________,
patentee shall serve and file preliminary disclosure of the claims infringed.
Patentee shall specify which claims are allegedly infringed and identify
the accused product(s) or method(s) that allegedly infringe those claims.
Patentee shall also specify whether the alleged infringement is literal or
falls under the doctrine of equivalents. If patentee has not already done
so, it shall produce all documents supporting its contentions and/or
identify any such supporting documents produced by accused infringer.
Such disclosures may be amended or supplemented up to 30 days before
the date of the Markman Hearing. After that time, such disclosures may
be amended or supplemented only by leave of court, for good cause
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shown.
c. Preliminary Invalidity and Non-Infringement Disclosures: Not later
than _______________, accused infringer shall serve and file Preliminary
Invalidity and Non-Infringement Contentions. Accused infringer shall
identify prior art that anticipates or renders obvious the identified patent
claims in question and, for each such prior art reference, shall specify
whether it anticipates or is relevant to the obviousness inquiry. If
applicable, the accused infringer shall also specify any other grounds for
invalidity, such as indefiniteness, best mode, enablement, or written
description. If the accused infringer has not already done so, it shall
produce documents relevant to the invalidity defenses and/or identify any
such supporting documents produced by patentee. Further, if the accused
infringer has not already done so, it shall produce documents sufficient to
show operation of the accused product(s) or method(s) that patentee
identified in its preliminary infringement disclosures. Such disclosures
may be amended or supplemented up to 30 days before the date of the
Markman Hearing. After that time, such disclosures may be amended or
supplemented only by leave of court, for good cause shown, except that, if
the patentee amends or supplements its preliminary infringement
disclosures, the accused infringer may likewise amend or supplement its
disclosures within 30 days of service of the amended or supplemented
infringement disclosures.
2. Amendments to Pleadings: Amendments to the pleadings under Fed. R. Civ. P.
15 and motions for joinder of any additional parties under Fed. R. Civ. P. 19 and
20 must be served and filed no later than __________________.
3. Claim Construction Proceedings
a. No later than , the parties shall simultaneously exchange a
list of claim terms to be construed and proposed constructions.
b. No later than , the parties shall simultaneously exchange
and file preliminary claim construction briefs. Each brief shall contain a
list of terms construed, the party’s proposed construction of each term, and
evidence and argument supporting each construction. Absent leave of
court, preliminary claim construction briefs shall be limited to 25 pages.
c. No later than , the parties shall simultaneously exchange
and file reply briefs. Absent leave of court, reply briefs shall be limited to
15 pages.
d. No later than , the parties shall finalize the list of disputed
terms for the court to construe. The parties shall prepare and file a joint
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claim construction and prehearing statement (hereafter the “joint
statement”) that identifies both agreed and disputed terms.
i. The joint statement shall note the anticipated length of time
necessary for the claim construction hearing and whether any party
proposes to call witness, including a statement that such extrinsic
evidence does not conflict with intrinsic evidence.
ii. The joint statement shall also indicate whether the parties will
present tutorials on the relevant technology, the form of such
tutorials, and the timing for such tutorials in the form of briefs,
declarations, computer animations, slide presentations, or other
media, the parties shall exchange such materials five days before
the claim construction hearing. In the alternative, the parties may
present tutorials through presentations by the attorneys or experts
at the claim construction hearing.
iii. The joint statement shall include a proposed order in which parties
will present their arguments at the claim construction hearing,
which may be term-by-term or party-by-party, depending on the
issues in the case.
iv. The joint statement shall limit the number of claims to be
construed and shall prioritize the disputed terms in order of
importance.
v. The joint statement shall include a joint claim construction chart,
noting each party’s proposed construction of each term and
supporting evidence.
4. The Claim Construction Hearing (a.k.a “Markman” Hearing): The Court
shall hold a claim construction hearing on .
5. Discovery.
a. Written Discovery. Written discovery (requests for production of documents,
interrogatories and request for admissions) shall be served no later than
.
b. Fact Discovery. Fact discovery will be completed no later than
.
6. Expert Discovery.
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a. Plaintiff(s)’ trial experts and information contemplated by Fed. R. Civ. P.
26(a)(2)(B) must be disclosed by .
b. Plaintiff(s)’ trial experts must be deposed by .
c. Defendant(s)’ trial experts and information contemplated by Fed. R. Civ.
P. 26(a)(2)(B) must be disclosed by .
d. Defendant(s)’ trial experts must be deposed by .
7. Dispositive Motions: Dispositive motions, such as motions for summary
judgment, shall be filed by .
8. Status Conferences: Status conference will be held on .
9. Initial Pretrial Conference. An initial pretrial status conference will be held on:
_________________ .
The parties shall prepare and submit a pretrial memorandum in accordance with
Local Rule 16.5(D) five business days prior to the date of the conference, except
that the parties need not include matters required by Local Rule 16.5(D)(2) or (3).
Procedural Provisions
1. Extension of Deadlines. Motions to extend or modify deadlines will be granted
only for good cause shown. All motions to extend shall contain a brief statement
of the reasons for the request; a summary of the discovery, if any, that remains to
be taken; and a specific date when the requesting party expects to complete the
additional discovery, join other parties, amend the pleadings, or file a motion.
2. Motions to Compel or Prevent Discovery. Except for good cause shown,
motions to compel discovery, motions for protective orders, motions to quash,
motions to strike discovery responses, and similar motions must be filed no later
than the close of fact discovery or the close of expert discovery, whichever
deadline is relevant. If additional discovery is compelled by the court after the
relevant deadline has passed, the court may enter such additional orders relating
to discovery as may be appropriate.
3. Reply Memoranda. Parties need not seek leave of court to file a reply
memorandum in response to an opposition to any motion, provided that such a
reply memorandum does not exceed twelve pages, double-spaced, and is filed
within seven days after service of the opposition memorandum. Parties may
otherwise file reply or surreply memoranda only with leave of court. When such
leave is sought, the moving party may file a proposed reply or surreply
memorandum with the motion for leave.
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4. Status Conferences. The court has scheduled status conferences for case
management purposes. Any party who reasonably believes that a status
conference will assist in the management or resolution of the case may request
one from the court upon reasonable notice to opposing counsel.
5. Additional Conferences. Upon request of counsel, or at the court’s own
initiative, additional case-management or status conferences may be scheduled.
Parties may request telephonic conferences where appropriate to avoid undue
inconvenience or expense.
6. Early Resolution of Issues. The court recognizes that, in some cases, resolution
of one or more preliminary issues may remove a significant impediment to
settlement or otherwise expedite resolution of the case. Counsel are encouraged
to identify any such issues and to make appropriate motions at an early stage in
the litigation.
7. Pretrial Conference. Lead trial counsel are required to attend any pretrial
conference.
By the Court,
Date Deputy Clerk
