FILED
March 05, 2025
CLERK, U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT COURT Alicia Davis
BY: ________________________________
FOR THE WESTERN DISTRICT OF TEXAS DEPUTY
AUSTIN DIVISION
STANDING ORDER GOVERNING PROCEEDINGS (OGP)—PATENT CASES
This OGP governs proceedings in all patent cases pending before the undersigned or referred
magistrate judge and takes effect upon entry in all patent cases, except where noted. If there are
conflicts between this OGP and prior versions in existing cases that the parties are unable to
resolve, the parties are encouraged to contact the Court for guidance via email to the Court’s law
clerk.
Parties should generally email any inquiries to the Court’s law clerk. The Court’s voicemail is not
checked regularly. Email is the preferred contact method.
Messages directed only to Judge Albright’s law clerks may be sent to:
[email protected].
I. NOTICE OF READINESS
In all patent cases pending before the undersigned or referred magistrate judge, the parties are
directed to jointly file the Case Readiness Status Report (“CRSR”) in the format attached as
Appendix B: (a) within 7 days after the Defendant (or at least one Defendant among a group of
related Defendants sued together) has responded to the initial pleadings in cases where there are
no CRSR Related Cases, or (b) when there are CRSR Related Cases, within 7 days after the last
Defendant (or last Defendant group when at least one Defendant among the group has responded)
among the CRSR Related Cases has responded to the initial pleadings. The CRSR shall be filed in
each case and identify all other CRSR Related Cases. For this Order, cases shall be considered
CRSR Related Cases when they meet both criteria: (1) the cases are filed within 30 days after the
first case is filed, and (2) the cases share at least one common asserted patent.
The parties shall meet and confer before jointly filing the CRSR. Plaintiff shall have responsibility
for filing the CRSR on time. If the parties have any pre-Markman issues needing resolution, the
parties shall email the Court a joint submission of the parties’ positions after filing the CRSR so
the Court can consider whether to hold a hearing to resolve these issues. If the parties do not have
any pre-Markman issues needing resolution, then the parties need not email the CRSR to the Court.
The Case Management Conference (“CMC”) shall be deemed to occur 14 days after the filing date
of the CRSR. If the CRSRs in CRSR Related Cases are not all submitted on the same date, the
CMC shall be deemed to occur 14 days after the last CRSR in those CRSR Related Cases is filed.
The Court intends to coordinate the CRSR Related Cases on the same schedule with a single
Markman hearing, so the parties should plan accordingly. In all cases, the Markman hearing shall
be initially scheduled for 23 weeks after the CMC and should be included in the parties’ proposed
Scheduling Order in accordance with this Order.
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II. GENERAL DEADLINES
The following deadlines apply:
1. Patent cases shall be set for a Rule 16 CMC in accordance with the preceding section.
2. Not later than 7 days before the CMC. The plaintiff shall serve preliminary infringement
contentions chart setting forth where in the accused product(s) each element of the asserted
claim(s) are found. The plaintiff shall also identify the priority date (i.e., the earliest date
of invention) for each asserted claim and produce: (1) all documents evidencing conception
and reduction to practice for each claimed invention, and (2) a copy of the file history for
each patent in suit.
3. Two weeks after the CMC. The parties shall file a motion to enter an agreed Scheduling
Order that generally tracks the exemplary schedule attached as Exhibit A to this OGP,
which should suit most cases. If the parties cannot agree, the parties shall submit a joint
motion for entry of a Scheduling Order briefly setting forth their scheduling disagreement.
Absent agreement of the parties, the plaintiff shall be responsible for the timely submission
of this and other joint filings. When filing any Scheduling Order, the parties shall also
jointly send an editable copy to the Court’s law clerk.
4. Seven weeks after the CMC. The defendant shall serve preliminary invalidity contentions
in the form of (1) a chart setting forth where in the prior art references each element of the
asserted claim(s) are found, (2) an identification of any limitations the defendant contends
are indefinite or lack written description under § 112, and (3) an identification of any claims
the defendant contends are directed to ineligible subject matter under § 101. The § 101
contention shall (1) identify the alleged abstract idea, law of nature, and/or natural
phenomenon in each challenged claim; (2) identify each claim element alleged to be well-
understood, routine, and/or conventional; and (3) to the extent not duplicative of §§
102/103 prior art contentions, prior art for the contention that claim elements are well-
understood, routine, and/or conventional. The defendant shall also produce (1) all prior art
referenced in the invalidity contentions, and (2) technical documents, including software
where applicable, sufficient to show the operation of the accused product(s).1
III. GENERAL DISCOVERY LIMITS
Except with regard to venue, jurisdictional, and claim construction-related discovery, all other
discovery shall be stayed until after the Markman hearing. Notwithstanding this general stay of
discovery, the Court will permit limited discovery by agreement of the parties, or upon request,
where exceptional circumstances warrant it. For example, if discovery outside the United States is
contemplated via the Hague, the Court is inclined to allow such discovery to commence before the
Markman hearing.
Following the Markman hearing, the following discovery limits apply. The Court will consider
reasonable requests to adjust these limits should circumstances warrant.
1
To the extent it may promote early resolution, the Court encourages the parties to exchange license and sales
information, but any such exchange is optional during the pre-Markman phase of the case.
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1. Interrogatories: 30 per side2
2. Requests for Admission: 45 per side
3. Requests for Production: 75 per side
4. Fact Depositions: 70 hours per side (for both party and non-party witnesses combined)
5. Expert Depositions: 7 hours per report3
Electronically Stored Information. As a preliminary matter, the Court will not require general
search and production of email or other electronically stored information (ESI) related to email
(such as metadata), absent a showing of good cause. If a party believes targeted email/ESI
discovery is necessary, it shall propose a procedure identifying custodians and search terms it
believes the opposing party should search. The opposing party can oppose or propose an alternate
plan. If the parties cannot agree, they shall contact the Court in accordance with the procedures
below, to discuss their respective positions.
IV. DISCOVERY DISPUTES
Referral to United States Magistrate Judge. The Court may, pursuant to Rule 1 of the Local
Rules for the Assignment of Duties to United States Magistrate Judges, Appendix C of the Local
Court Rules of the United States District Court for the Western District of Texas, refer discovery
disputes in patent cases pending before the undersigned to a United States Magistrate Judge for a
determination under 28 U.S.C. § 636(b)(1)(A).
Messages directed only to Judge Hightower’s chambers may be sent to:
[email protected]
Messages directed only to Judge Howell’s chambers may be sent to:
[email protected]
Messages directed only to Judge Lane’s chambers may be sent to:
[email protected]
2
A “side” shall mean the plaintiff (or related plaintiffs suing together) on the one hand, and the defendant (or related
defendants sued together) on the other hand. If the Court consolidates related cases for pretrial purposes, with regard
to calculating limits imposed by this OGP, a “side” shall be interpreted as if the cases were proceeding individually.
For example, in consolidated cases the plaintiff may serve up to 30 interrogatories on each defendant, and each
defendant may serve up to 30 interrogatories on the plaintiff.
3
For example, if a single technical expert submits reports on both infringement and invalidity, he or she may be
deposed for up to 14 hours in total.
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Procedure. A party may not file a Motion to Compel discovery unless: (1) lead counsel with
decision making authority have met and conferred in good faith to try to resolve the dispute, and
(2) the party has contacted the Court’s law clerk to summarize the dispute and the parties’
respective positions.4 When contacting the Court’s law clerk for discovery or procedural disputes,
the following procedures shall apply.
If the parties remain at an impasse after lead counsel have first met and conferred,5 the requesting
party shall then email a summary of the issue(s) and specific relief requested to all counsel of
record. The summary of the issue shall not exceed 500 words for one issue or a combined 1,000
words for multiple issues. The responding party has 3 business days6 thereafter to provide an email
response, also not to exceed 500 words for one issue or a combined 1,000 words for multiple
issues. The specific relief requested should propose the exact language to be issued in a court order
for each part of every disputed issue. The specific relief requested does not count toward the word
limits. The Court encourages the parties to provide their submission in a Word document in the
following table format, which clearly identifies the disputed issues and specific relief requested.
Example:
Issue Requesting Party’s Position Responding Party’s Position
RFP 1: All sale Responding Party didn’t produce We found no sales records of the
records of the anything. Responding Party keeps Product in the sales database.
Product. its sales records in a sales
database. Relief: Find that “no documents
responsive to RFP 5 exist” and deny
Relief: Order that “Responding Requesting Party’s relief.
Party must produce a copy of the
sales database within 7 days.”
ROG 5: Responding Party only identified a We identified the relevant employees.
Identify all subset of the employees. The other employees are not relevant,
employees and it is too burdensome to identify
who worked Relief: Order that “Responding every employee.
on the Product. Party is compelled to fully respond
to ROG 5 by identifying the names Relief: Order that “Responding Party
and locations of the remaining need not identify any other employees
employees who worked on in response to ROG 5.”
Product by [date].”
4
The procedure outlined below is also the Court’s preferred mechanism for handling disputes regarding procedural
matters such as extensions of time, excess pages, narrowing claims and prior art, amending invalidity and infringement
contentions, etc. If the parties are unsure about whether a particular dispute should be handled by motion or discovery
dispute procedure, they should contact the Court's clerks.
5
A “meet and confer” requires a personal conference, by telephone or video conference technology, between lead
counsel with decision making authority wherein the participants attempt to resolve their differing views before
contacting the Court. Correspondence, such as e-mail, is insufficient.
6
Business days exclude weekends and federal holidays.
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Once the opposing party provides its response, the requesting party shall immediately email the
summaries of the issues to the Court’s law clerks for both Judge Albright and the referred
Magistrate Judge, if any, with opposing counsel copied. If a hearing is requested, the parties shall
indicate in the email whether any confidential information will be presented. Thereafter, the Court
will provide guidance to the parties regarding the dispute or arrange a Zoom or in-person hearing.
Written Order. Within 7 days of the discovery hearing, the parties shall email a joint proposed
order to the Court’s law clerk that includes the parties’ positions from their dispute chart, the
parties’ requested relief, and the parties’ understanding of the Court’s ruling so that the arguments
and outcome can be docketed. Parties shall send an editable version of the proposed order to the
Court’s law clerk with any disputed language in red and blue text. Failure to provide a proposed
written order for the docket results in waiver of the dispute for appeal.
V. VENUE & JURISDICTIONAL DISCOVERY
The Court hereby establishes the following presumptive limits on discovery related to venue and
jurisdiction: each party is limited to 5 interrogatories, 10 Requests for Production, and 10 hours of
deposition testimony. The time to respond to such discovery requests is reduced to 20 days. If a
party believes these limits should be expanded, the party shall meet and confer with opposing
counsel and, if an impasse is reached, the requesting party is directed to contact the Court’s law
clerk for a telephonic hearing.
Venue or jurisdictional discovery automatically opens upon the filing of an initial venue or
jurisdictional motion and shall be completed no later than 10 weeks after the filing of such motion.
The responding party shall file a notice of venue or jurisdictional discovery if the discovery will
delay a response to a transfer or jurisdictional motion.
VI. MOTIONS FOR TRANSFER
A motion to transfer anywhere shall be filed within 3 weeks after the CMC or within 8 weeks of
receiving or waiving service of the complaint, whichever is later. Thereafter, a movant must show
good cause for any delay and seek leave of court. The deadline for plaintiff’s response is 2 weeks
after the completion of venue or jurisdictional discovery. The deadline for Defendant’s reply is 2
weeks after the filing of the response.
The following page limits and briefing schedule apply to motions to transfer:
1. Opening – 15 pages
2. Response – 15 pages, due 14 days after the completion of venue or jurisdictional discovery,
if such discovery is conducted; otherwise, 14 days after the Opening brief
3. Reply – 5 pages, due 14 days after the Response brief
All parties who have filed a motion to transfer shall provide the Court with a status report
indicating whether the motion has been fully briefed at each of the following times: 1) when the
motion to transfer becomes ready for resolution,; 2) at 4 weeks before the Markman hearing date
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if the motion to transfer remains unripe for resolution; and 3) if there are multiple Markman
hearings, the status report is due 6 weeks before the first scheduled Markman hearing. In addition,
if by 1 week before the Markman hearing the Court has not ruled on any pending motion to transfer,
the moving party is directed to email the Court’s law clerk (and the technical advisor, when
appointed), and indicate that the motion to transfer is pending.
If a motion to transfer remains pending, the Court will either promptly resolve the pending motion
before the Markman hearing, or postpone the Markman hearing. Whenever a Markman hearing is
postponed pursuant to this OGP (e.g., because the transfer motion has not yet ripened or only
recently ripened), Fact Discovery will begin one day after the originally scheduled Markman
hearing date.
VII. MEET AND CONFER REQUIREMENTS FOR
EARLY MOTIONS TO DISMISS INDIRECT AND WILLFUL INFRINGEMENT
Any party seeking to dismiss claims of indirect or willful infringement before fact discovery must
first meet and confer with the opposing party to discuss dismissing those allegations without
prejudice, with leave to re-plead those allegations with specificity if supported by a good faith
basis under Rule 11. Under this agreement, the patent owner may re-plead those allegations within
three months after fact discovery opens, and the parties agree to permit fact discovery on indirect
and willful infringement during those three months. The party moving to dismiss must attach a
certification of compliance with this OGP to its motion to dismiss.
An agreement to dismiss under this section shall be filed as a joint notice instead of as a motion.
VIII. INTERIM PROTECTIVE ORDER
The Court provides a Model Protective Order on its website. Pending entry of the final Protective
Order, the Court issues the following interim Protective Order to govern the disclosure of
confidential information:
If any document or information produced in this matter is deemed confidential by
the producing party and if the Court has not entered a protective order, until a
protective order is issued by the Court, the document shall be marked “confidential”
or with some other confidential designation (such as “Confidential – Outside
Attorneys’ Eyes Only”) by the disclosing party and disclosure of the confidential
document or information shall be limited to each party’s outside attorney(s) of
record and the employees of such outside attorney(s).
If a party is not represented by an outside attorney, disclosure of the confidential
document or information shall be limited to one designated “in house” attorney,
whose identity and job functions shall be disclosed to the producing party 5 days
prior to any such disclosure, in order to permit any motion for protective order or
other relief regarding such disclosure. The person(s) to whom disclosure of a
confidential document or information is made under this OGP shall keep it
confidential and use it only for purposes of litigating the case.
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IX. CLAIM CONSTRUCTION
Limits for Number of Claim Terms to be Construed
Terms for Construction. Based on the Court’s experience, the Court believes that it should have
presumed limits on the number of claim terms to be construed. The “presumed limit” is the
maximum number of terms that each side may request the Court to construe without further leave
of Court. If the Court grants leave for additional terms to be construed, depending on the
complexity and number of terms, the Court may split the Markman hearing into multiple hearings.
The presumed limits based on the number of patents-in-suit are as follows:
1-2 Patents 3-5 Patents More than 5 Patents
8 terms 10 terms 12 terms
When the parties submit their joint claim construction statement, in addition to the term and the
parties’ proposed constructions, the parties should indicate which party or side proposed that term,
or if that was a joint proposal.
Briefing Procedure and Page Limits
The Court will require non-simultaneous Markman briefing with the following default page limits.
When exceptional circumstances warrant, the Court will consider reasonable requests to adjust
these limits. These page limits shall also apply collectively for coordinated and consolidated cases;
however, the Court will consider reasonable requests to adjust page limits in consolidated cases
where circumstances warrant. The Court has familiarity with the law of claim construction and
encourages the parties to forego lengthy recitations of legal authorities and to instead focus on the
substantive issues unique to each case.
Unless otherwise agreed to by the parties, the default order of terms in the parties’ briefs shall be
based on 1) the patent number (lowest to highest), the claim number (lowest to highest), and order
of appearance within the lowest number patent and claim. An example order may be as follows:
1. 10,000,000 Patent, Claim 1, Term 1
2. 10,000,000 Patent, Claim 1, Term 2 (where Term 2 appears later in the claim than does
Term 1)
3. 10,000,000 Patent, Claim 2, Term 3 (where Term 3 appears later in the claim than does
Terms 2 and 3)
4. 10,000,001 Patent, Claim 1, Term 4
5. 10,000,001 Patent, Claim 3, Term 5
6. 10,000,002 Patent, Claim 2, Term 6
If the same or similar terms appear in multiple claims, those same or similar terms should be
ordered according to the lowest patent number, lowest claim number, and order of appearance
within the patent and claim.
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Brief 1-2 Patents 3-5 Patents More than 5 Patents
Opening (Defendant) 20 pages 30 pages 30 pages, plus 5
additional pages for
each patent over 5 up
to a maximum of 45
pages
Response (Plaintiff) 20 pages 30 pages 30 pages, plus 5
additional pages for
each patent over 5 up
to a maximum of 45
pages
Reply (Defendant) 10 pages 15 pages 15 pages, plus 2
additional pages for
each patent over 5 up
to a maximum of 21
pages
Sur-Reply (Plaintiff) 10 pages 15 pages 15 pages, plus 2
additional pages for
each patent over 5 up
to a maximum of 21
pages
After briefing concludes, the parties shall file a Joint Claim Construction Statement and email an
editable copy to the Court’s law clerks.
Technology Tutorials and Conduct of the Markman Hearing
Technology tutorials are optional, especially in cases where a technical advisor has been appointed.
If the parties submit one, the tutorial should be in electronic form, with voiceovers, and submitted
at least 10 days before the Markman hearing. In general, tutorials should be: (1) directed to the
underlying technology (rather than argument related to infringement or validity), and (2) limited
to 15 minutes per side. The tutorial will not be part of the record and the parties may not rely on
or cite the tutorial in other aspects of the litigation.
The Court generally sets aside one hour for the Markman hearing; however, the Court is open to
reserving more or less time, depending on the complexity of the case and input from the parties.
As a general rule, the party opposing the Court’s preliminary construction shall go first. If both
parties oppose the Court’s preliminary construction, the plaintiff shall typically go first.
The Court will provide preliminary constructions to the parties ahead of the Markman hearing. At
the Markman hearing, the Court encourages oral arguments that fine-tune the preliminary
constructions over arguments repeated from the briefs.
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X. GENERAL ISSUES
1. The Court will entertain reasonable requests to streamline the case schedule and discovery.
The Parties should contact the Court’s law clerk when a change might help streamline the
case.
2. The Court is generally willing to extend the response to the Complaint up to 45 days if
agreed by the parties. Extensions beyond 45 days from the original answer date are
disfavored and require a motion.
3. Speaking objections during depositions are improper. Objections during depositions shall
be stated concisely and in a nonargumentative and nonsuggestive manner. Other than to
evaluate privilege issues, counsel should not confer with a witness while a question is
pending. Counsel may confer with witnesses during breaks in a deposition without waiving
any otherwise applicable privilege.
4. Within 10 days of any new changes relevant to AO 120 (Report on the Filing or
Determination of an Action Regarding a Patent or Trademark), the Plaintiff must update
the form with any new changes to the case such as amended complaints or new claims.
5. Plaintiff must file a notice informing the Court when an IPR is filed, the expected time for
an institution decision, and the expected time for a final written decision, within 2 weeks
of the filing of the IPR.
6. After the trial date is set, the Court will not move the trial date except in extreme situations.
If a party believes that the circumstances warrant continuing the trial date, the parties are
directed to contact the Court’s law clerk.
7. Appendix C, Order on Motions in Limine (MILs), shall apply equally to all parties. In
addition to the standard MILs, each party will be permitted to propose and argue (if
opposed) up to five (5) of its own MILs at the Pretrial Conference. MILs outside these
limits will not be considered. MILs that are multifarious so as to exceed the above
limitations will also not be considered. MILs that simply restate the rules of evidence or
other legal principles or that are more appropriately motions for summary judgment or
Daubert motions are improper.
8. The Court does not limit the number of motions for summary judgment (MSJs) or Daubert
motions7 a party may file. However, absent leave of Court, the cumulative page limit for
opening briefs for all MSJs is 40 pages per side,8 for all Daubert motions is 40 pages per
side, and for all MILs is 15 pages per side. Each responsive MSJ, Daubert, and MIL brief
is limited to the pages utilized in the opening brief or by the local rules, whichever is
greater; and the cumulative pages for responsive briefs shall be no more than cumulative
7
This includes any motion filed after opening expert reports that seeks to strike or preclude the use of any part of an
expert report for any reason, including procedural reasons.
8
MSJs based on 35 U.S.C. § 101 do not count against the page limits for summary judgment motions.
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pages utilized in the opening briefs. Reply brief page limits shall be governed by the local
rules, but in no event shall the cumulative pages of reply briefs exceed 20 pages per side
for all MSJs, 20 pages per side for all Daubert motions, and 10 pages for all MILs.
9. The Court no longer requires physical copies of Markman briefs, summary judgment
motions, and Daubert motions. If a technical advisor has been appointed, the parties
shall jointly contact the Court’s law clerks, at least ten days before the hearing, for a
Box link to provide an electronic copy of the briefs, exhibits, and the optional
technology tutorial. Otherwise, the parties shall jointly contact the Court’s law clerks
for a Box link only if the parties wish to submit the optional technology tutorial.
Absent agreement to the contrary, the plaintiff shall be responsible for providing the
electronic copies via Box. For Markman briefs, the parties should also include a copy of
all patents-in-suit and an editable copy of the Joint Claim Construction Statement.
10. When filing the Joint Claim Construction Statement, proposed Protective Order, or
proposed Scheduling Order, the parties shall also email the Court’s law clerk a Word
version of the filed documents.
11. For all non-dispositive motions, the parties shall submit a proposed Order. The proposed
Order shall omit the word “Proposed” from the title.
12. For non-private remote hearings in front of Judge Albright, the public is allowed to attend
via the call-in information below. However, the public shall not attempt to access video of
those hearings, and anyone found not to be in compliance is subject to sanctions by the
Court.
+16692545252,,1613131172#,,,,*120804# US (San Jose)
+16468287666,,1613131172#,,,,*120804# US (New York
13. Any party who intends to present confidential information in a remote hearing shall email
and notify the Court’s law clerk to request a private Zoom setup that will not be publicly
broadcasted.
14. When citing cases or exhibits in a motion, parties shall pin cite the relied-upon section of
a case or exhibit. For any motion referencing an expert report (e.g., motions to strike,
Daubert motions, and summary judgment motions), the Court requires full copies of the
expert report attached as an exhibit. The Court strongly encourages parties to highlight
and/or annotate the relied-upon sections of exhibits or expert reports (e.g., patents,
transcripts, contracts) to facilitate the Court’s analysis of the motion. A supporting
declaration should identify if any exhibit is highlighted or annotated.
15. Parties shall promptly notify the Court if they reach a settlement in a case and request to
stay any deadlines.
16. When filing a patent case, the Plaintiff shall file a “Notice of Related Cases” on the day of
filing the patent case. For the Notice of Related Cases, cases shall be considered “related”
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when they share at least one common asserted patent.9 The Notice of Related Cases shall
indicate the case caption, case number, and presiding Judge of any related case.
17. A pleading, motion, or other submission shall be typed or printed in 12-point or larger font
(including footnotes), double-spaced, on paper sized 8½” x 11” with one-inch margins on
all sides and shall be endorsed with the style of the case and the descriptive name of the
document. Headings, footnotes, and quotations more than two lines long may be single-
spaced.
18. With respect to calculating page limits for motions not otherwise addressed in this Order,
such that Local Rule CV-7 applies, at least the following are examples of motions the Court
considers to be “case management motions” where the 10-page limit shall apply: Motions
to Stay, Motions for Continuance, and Motions to Amend Pleadings, Contentions, or
Scheduling Orders.
XI. TRIAL & POST-TRIAL ISSUES
1. Preliminary and Final Jury Instructions with disputed language must include citations to
prior jury instructions given by this Court. Parties shall send an editable version of the
proposed instructions to the Court’s law clerk with the disputed language in red and blue
text. Instructions should exactly track the language of prior instructions to the extent
possible. Language from the Court’s most recent Jury Instructions is preferred.
2. Parties shall file a joint proposed final judgement within 14 days of a jury verdict. If one
party disputes the language of the order, then that party shall send an editable version of
the proposed order to the Court’s law clerk with the disputed language in red and blue text.
The Court discourages the parties from providing extensive substantive argument in the
editable version of the proposed judgment.
3. On the same day that post-trial briefing is completed, the parties shall email the Court’s
law clerks with a list of the pending motions and request a hearing, if desired.
4. Prior to entering an order regarding post-trial bonds, parties are directed to reach out to the
District Clerks Office to obtain specific information needed to complete the order. The
Office can be reached at
[email protected] or 512-
916-5896.
SIGNED this 5th day of March, 2025.
9
The CRSR and Notice of Related Cases use different definitions.
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XII. APPENDIX A – EXEMPLARY SCHEDULE
Deadline Item
8 weeks after receiving or Deadline to file a motion for transfer. After this deadline, movants
waiving service of must seek leave of Court and show good cause for the delay.
complaint, or 3 weeks after
the CMC, whichever is
later.
7 days before CMC Plaintiff serves preliminary10 infringement contentions in the
form of a chart setting forth where in the accused product(s) each
element of the asserted claim(s) are found. Plaintiff shall also
identify the earliest priority date (i.e., the earliest date of
invention) for each asserted claim and produce: (1) all documents
evidencing conception and reduction to practice for each claimed
invention, and (2) a copy of the file history for each patent in suit.
2 weeks after CMC The Parties shall file a motion to enter an agreed Scheduling
Order. If the parties cannot agree, the parties shall submit a
separate Joint Motion for entry of Scheduling Order briefly setting
forth their respective positions on items where they cannot agree.
Absent agreement of the parties, the Plaintiff shall be responsible
for the timely submission of this and other Joint filings.
7 weeks after CMC Defendant serves preliminary invalidity contentions in the form
of (1) a chart setting forth where in the prior art references each
element of the asserted claim(s) are found, (2) an identification of
any limitations the Defendant contends are indefinite or lack
written description under section 112, and (3) an identification of
any claims the Defendant contends are directed to ineligible
subject matter under section 101. Defendant shall also produce
(1) all prior art referenced in the invalidity contentions, and
(2) technical documents, including software where applicable,
sufficient to show the operation of the accused product(s).
9 weeks after CMC Parties exchange claim terms for construction.
11 weeks after CMC Parties exchange proposed claim constructions.
10
The parties may amend preliminary infringement contentions and preliminary invalidity contentions without leave
of court so long as counsel certifies that it undertook reasonable efforts to prepare its preliminary contentions and that
the amendment is based on material identified after those preliminary contentions were served and should do so
seasonably upon identifying any such material. Any amendment to add patent claims requires leave of court so that
the Court can address any scheduling issues.
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Deadline Item
12 weeks after CMC Parties disclose extrinsic evidence. The parties shall disclose any
extrinsic evidence, including the identity of any expert witness
they may rely upon with respect to claim construction or
indefiniteness. With respect to any expert identified, the parties
shall identify the scope of the topics for the witness’s expected
testimony.11 With respect to items of extrinsic evidence, the
parties shall identify each such item by production number or
produce a copy of any such item if not previously produced.
13 weeks after CMC Deadline to meet and confer to narrow terms in dispute and
exchange revised list of terms/constructions.
14 weeks after CMC Defendant files Opening claim construction brief, including any
arguments that any claim terms are indefinite.
17 weeks after CMC Plaintiff files Responsive claim construction brief.
19 weeks after CMC Defendant files Reply claim construction brief.
Parties to jointly email the law clerks to confirm their Markman
date and to notify if any venue or jurisdictional motions remain
unripe for resolution.
21 weeks after CMC Plaintiff files Sur-Reply claim construction brief.
3 business days after Parties submit Joint Claim Construction Statement and email the
submission of sur-reply law clerks an editable copy.
See General Issues Note #9 regarding providing copies of the
briefing to the technical advisor (if appointed).
22 weeks after CMC (but Parties submit optional technical tutorials to the Court and
at least 10 days before technical adviser (if appointed).
Markman hearing)
23 weeks after CMC (or as Markman Hearing at 9:00 a.m. This date is a placeholder and the
soon as practicable)12 Court may adjust this date as the Markman hearing approaches.
1 business day after Fact Discovery opens; deadline to serve Initial Disclosures per
Markman hearing Rule 26(a).
6 weeks after Markman Deadline to add parties.
hearing
11
Any party may utilize a rebuttal expert in response to a brief where expert testimony is relied upon by the other
party.
12
All deadlines hereafter follow the original Markman hearing date and do not change if the Court delays the Markman
hearing.
OGP Version 1 Austin 13
Deadline Item
8 weeks after Markman Deadline to serve Final Infringement and Invalidity Contentions.
hearing After this date, leave of Court is required for any amendment to
Infringement or Invalidity contentions. This deadline does not
relieve the Parties of their obligation to seasonably amend if new
information is identified after initial contentions.
16 weeks after Markman Deadline to amend pleadings. A motion is not required unless the
hearing amendment adds patents or patent claims. (Note: This includes
amendments in response to a 12(c) motion.).
26 weeks after Markman Deadline for the first of two meet and confers to discuss
hearing significantly narrowing the number of claims asserted and prior
art references at issue. Unless the parties agree to the narrowing,
they are ordered to contact the Court to arrange a teleconference
with the Court to resolve the disputed issues.
30 weeks after Markman Close of Fact Discovery
hearing
31 weeks after Markman Opening Expert Reports.
hearing
35 weeks after Markman Rebuttal Expert Reports.
hearing
38 weeks after Markman Close of Expert Discovery.
hearing
39 weeks after Markman Deadline for the second of two meet and confers to discuss
hearing narrowing the number of claims asserted and prior art references
at issue to triable limits. If it helps the parties determine these
limits, the parties are encouraged to contact the Court for an
estimate of the amount of trial time anticipated per side. The
parties shall file a Joint Report within 5 business days regarding
the results of the meet and confer.
40 weeks after Markman Dispositive motion deadline and Daubert motion deadline.
hearing
See OGP Note #9 regarding providing copies to the Court and
technical advisor (if appointed).
Deadline for parties desiring to consent to trial before the
magistrate judge to submit Form AO 85, “Notice, Consent, And
Reference Of A Civil Action To A Magistrate Judge,” available
at https://www.uscourts.gov/forms/civil-forms/notice-consent-
and-reference-civil-action-magistrate-judge.
42 weeks after Markman Serve Pretrial Disclosures (jury instructions, exhibits lists,
hearing witness lists, deposition designations).
44 weeks after Markman Serve objections to pretrial disclosures/rebuttal disclosures.
hearing
OGP Version 1 Austin 14
Deadline Item
45 weeks after Markman Serve objections to rebuttal disclosures; file motions in limine.
hearing
46 weeks after Markman File Joint Pretrial Order and Pretrial Submissions (jury
hearing instructions, exhibits lists, witness lists, discovery and deposition
designations); file oppositions to motions in limine.
From this date onwards, the parties are obligated to notify the
Court of any changes to the asserted patents or claims. Such
notification shall be filed on the docket within seven (7) days of
the change and shall include a complete listing of all asserted
patents and claims. If a change to the asserted patents or claims
requires leave of court (for example, if a party is moving for
leave to assert additional claims), notification shall not be
required until the Court grants leave, at which point the
notification must be filed within seven (7) days.
47 weeks after Markman File Notice of Request for Daily Transcript or Real Time
hearing Reporting. If a daily transcript or real time reporting of court
proceedings is requested for trial, the party or parties making
said request shall file a notice with the Court and email the Court
Reporter, Kristie Davis at
[email protected]
Deadline to file replies to motions in limine.
48 weeks after Markman Deadline to meet and confer regarding remaining objections and
hearing disputes on motions in limine.
8 weeks before trial Parties to jointly email the Court’s law clerk to confirm their
pretrial conference and trial dates.
3 business days before File joint notice identifying remaining objections to pretrial
Final Pretrial Conference disclosures and disputes on motions in limine.
49 weeks after Markman Final Pretrial Conference. Held in person unless otherwise
hearing (or as soon as requested.
practicable)
52 weeks after Markman Jury Selection/Trial.
hearing (or as soon as
practicable)13
13
If the actual trial date materially differs from the Court’s default schedule, the Court will consider reasonable
amendments to the case schedule post-Markman that are consistent with the Court’s default deadlines in light of the
actual trial date.
OGP Version 1 Austin 15
XIII. APPENDIX B – EXEMPLARY CASE READINESS STATUS REPORT
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
[PLAINTIFF],
Case No. 1:25-cv-00000-ADA
Plaintiff,
v. JURY TRIAL DEMANDED
[DEFENDANT],
Defendant.
CASE READINESS STATUS REPORT
Plaintiff [names] and Defendant [name(s)], hereby provide the following status report.
SCHEDULE
A scheduling order [has been proposed and awaits entry by the Court, has been issued by
the Court, or has not yet been filed].
[Indicate if a Markman date has been set, proposed, or not yet proposed.]
[Indicate if a trial date has been set, proposed, or not yet proposed.]
FILING AND EXTENSIONS
Plaintiff’s Complaint was filed on [filing date]. There have been [one/two] extension[s]
for a total of __ days.
RESPONSE TO THE COMPLAINT
[Indicate if/when the Defendant(s) responded to the Complaint, whether it was an Answer
or Motion, and whether any counterclaims were filed other than counterclaims for non-
infringement or invalidity]
OGP Version 1 Austin 16
PENDING MOTIONS
[Identify all pending motions]
RELATED CASES IN THIS JUDICIAL DISTRICT
[Identify all related cases in this Judicial District, including any other cases where a
common patent is asserted]
IPR, CBM, AND OTHER PGR FILINGS
[There are no known IPR, CBM, or other PGR filings.] [Or]
[ALT: IPR2021-00000 was filed on ____ and docketed on ____. An institution decision is
expected on or before ___. A Final Written decision is expected on or before _____.]
NUMBER OF ASSERTED PATENTS AND CLAIMS
Plaintiff has asserted [Num Patents] patent[s] and a total of [Num Claims] claims. The
asserted patent(s) are U.S. Patent Nos. ____.
[If a Plaintiff has already served Preliminary Infringement Contentions (“PICs”), note the
date of service. Note: Per the Court’s Order Governing Proceeding, Plaintiff must serve PICs no
later than 7 days before the CMC]
APPOINTMENT OF TECHNICAL ADVISOR
[Indicate if the Parties request, oppose, or defer to the Court on whether to appoint a
technical advisor to the case to assist the Court with claim construction or other technical issues]
MEET AND CONFER STATUS
Plaintiff and Defendant met and conferred. [The Parties have no pre-Markman issues to
raise at the CMC.] or [The Parties identified the following pre-Markman issues to raise at the CMC
[list].]
OGP Version 1 Austin 17
Dated: _______________ Respectfully Submitted
/s/
OGP Version 1 Austin 18
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
PLAINTIFF, §
§
Plaintiff, §
§
v. §
§ Case No. W-2X-CV-XXXXX-ADA
§
DEFENDANT, §
§
Defendant. §
ORDER ON MOTIONS IN LIMINE
The Court issues this Order sua sponte. To allow for reasonable and relevant limine practice
as part of the Pretrial Conference, the Court imposes the following set of standard limine rulings
to be applied mutually to both parties. In addition to these limine orders, each party will be
permitted to propose and argue (if opposed) up to five (5) of its own motions in limine at the
Pretrial Conference. Limine motions outside these limits will not be considered. Limine motions
that are multifarious so as to exceed the above limitations will also not be considered. MILs that
simply restate the rules of evidence or other legal principles or that are more appropriately motions
for summary judgment or Daubert motions are improper.
It is therefore ORDERED that the Parties, their witnesses, and counsel shall not raise,
discuss, or argue the following before the venire panel or the jury without prior leave of the Court:
Court MIL No. 1: The parties shall be precluded from introducing evidence, testimony,
or argument regarding pretrial proceedings or issues including but
not limited to discovery disputes or dispositive motion practice.
Court MIL No. 2: The parties shall be precluded from introducing evidence, testimony,
or argument that raises religious or political beliefs, race, ethnicity,
gender, national origin, sexual orientation, or health (including but
OGP Version 1 Austin 19
not limited to vaccination status) of a party, witness, attorney, or law
firm.
Court MIL No. 3: The parties shall be precluded from introducing evidence, testimony,
or argument concerning any party’s overall financial size, wealth, or
executive compensation.
Court MIL No. 4: The parties shall be precluded from introducing evidence, testimony,
or argument regarding prior art that is not disclosed in a specific
combination set forth in any party’s expert report or invalidity
contentions.
Court MIL No. 5: The parties shall be precluded from introducing evidence, testimony,
or argument before the jury that relates only to equitable defenses or
counterclaims (i.e., evidence that does not also serve another
evidentiary purpose relevant to jury issues).
Court MIL No. 6: The parties shall be precluded from introducing evidence, testimony,
or argument concerning the Patent Trial and Appeal Board, inter
partes review, the Smith-Leahy America Invents Act, or any
alternative structure that does not relate directly to an Article III
trial in a district court.
Court MIL No. 7: The parties shall be precluded from introducing evidence, testimony,
or argument suggesting that there is anything legally improper in
filing a patent application or writing patent claims to cover an
adverse party’s product.
Court MIL No. 8: The parties shall be precluded from introducing any argument,
evidence, testimony, insinuation, reference, or assertion regarding a
witness’ choice to testify in his or her native or chosen language
(being any language other than English).
Court MIL No. 9: The parties shall be precluded from introducing evidence, testimony,
or argument referring to any other person or entity as “greedy,”
“corrupt,” “evil,” or “dishonest,” or using any other pejorative term.
The parties shall also be precluded from introducing evidence,
testimony, or argument that characterizes any other person or
entity’s actions as “stealing,” “copying,” “misappropriating,”
“pirating,” “trespassing,” or any similar terms.
Court MIL No. 10: The parties shall be precluded from introducing evidence, testimony,
or argument bolstering or disparaging the U.S. Patent Office, its
examiners, or the process for prosecuting patent applications or
granting patents in the United States. This does not preclude factual
evidence as to the operations of the USPTO.
OGP Version 1 Austin 20
Court MIL No. 11: The parties shall be precluded from introducing evidence, testimony,
or argument referring to any other person or entity in disparaging
ways, such as a “patent troll,” “pirate,” “bounty hunter,” “bandit,”
“playing the lawsuit lottery,” “shell company,” “shakedown artist,”
“patent assertion entity,” or any such similar terms. Use of the term
“non-practicing entity” is permitted.
Court MIL No. 12: The parties shall be precluded from introducing evidence, testimony,
or argument regarding funding of the litigation or regarding any
comment on attorney-fee compensation including amounts or
structure.
Court MIL No. 13: The parties shall be precluded from introducing evidence, testimony,
or argument regarding either party’s other litigations or
arbitrations, including parallel proceedings in any other court,
tribunal, or forum, including ADR proceedings.
Court MIL No. 14: The parties shall be precluded from introducing evidence, testimony,
or argument regarding the size of the parties’ law firms or the
number of attorneys representing the parties.
Court MIL No. 15: The parties shall be precluded from introducing evidence, testimony,
or argument regarding the fact that testimony or opinions offered by
any expert may have been criticized, excluded, or found to be
unreliable in any other forum.
Court MIL No. 16: The parties shall be precluded from introducing evidence, testimony,
or argument referring to the role or presence in the courtroom of
jury consultants or shadow jurors, or the use of focus groups or
mock proceedings to assist with trial preparation, jury selection, or
trial.
Court MIL No. 17: The parties shall be precluded from introducing evidence, testimony,
or argument relating to the Court’s Claim Construction Order other
than the Court’s actual adopted constructions, including the Court’s
reasoning or the parties’ agreements.
Court MIL No. 18: The parties shall be precluded from introducing evidence, testimony,
or argument for purposes of non-infringement comparing the
accused product or method to the preferred embodiments, the
specification, or any non-accused product or method.
Court MIL No. 19: The parties shall be precluded from introducing evidence, testimony,
or argument suggesting that a verdict in one party’s favor would
OGP Version 1 Austin 21
impact the cost of goods or services or would have other commercial
impacts.
Court MIL No. 20: The parties shall be precluded from introducing evidence, testimony,
or argument suggesting that the Western District of Texas is an
improper or inconvenient venue in which to try this case.
Court MIL No. 21: The parties shall be precluded from introducing evidence, testimony,
or argument suggesting that the other party had an affirmative duty
to seek opinion of counsel, and/or any inference that may be drawn
as to what the contents of such an opinion would have been.
Court MIL No. 22: Neither party will ask questions or make statements to invoke a
privileged or protected answer, including any materials that are
privileged, or that have been presented outside of the jury to
establish/prevent a finding of privilege.
Court MIL No. 23: No expert witness may testify to expert opinions outside the
established parameters of her/his expert report, and counsel shall
not raise such an objection for strategic or other non-meritorious
purposes.
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