Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 1 of 8 PageID #: 8920
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`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 1 of 8 PagelD #: 6003
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC. and CITY OF HOPE,
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`Plaintiffs,
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`V.
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`AMGEN INC.,
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`Defendant.
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`C.A. No. 17-1407-GMS
`C.A. No. 17-1471-GMS
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`This /cf day of May 2018, the Court havirig:conducted Rule 16 Scheduling
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`-{PROPOSE;B:l: SCHEDULING ORDER
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`Conferences pursuant to Local Rule 16.2(b) on April 11, 2018 and May 7, 2018 and having
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`directed the parties to submit a form of Scheduling Order memorializing the Court's rulings at
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`the Rule 16 Scheduling Conferences, and the parties having determined after discussion that the
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`matter cannot be resolved at this juncture by settlement, voluntary mediation or binding
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`arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a) Initial Disclosures. Unless otherwise agreed to by the parties, they
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`shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26( a) on or before
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`May 29, 2018.
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`2.
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`Narrowing of Asserted Patents and Claims. Plaintiffs shall reduce the number
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`of patents as to which they claim infringement in this litigation to no more than eight patents by
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`August 31, 2018. Plaintiffs further shall identify no more than twenty claims for claim
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`construction and trial by September 17, 2018.
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 2 of 8 PageID #: 8921
`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 2 of 8 PagelD #: 6004
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`After the August 31, 2018 deadline, Plaintiffs shall be permitted to select as many as two
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`additional patents upon a showing of good cause.
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`3.
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`Joinder of other Parties and Amendment of Pleadings. All motions to join
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`other parties and amend the pleadings shall be filed on or before February 1, 2019·.
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`4.
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`Reliance Upon Advice of Counsel. Defendant shall inform Plaintiffs whether it
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`intends to rely upon advice of counsel as a defense to willful infringement no later than March
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`29, 2019. If Defendant elects to rely on advice of counsel as a defense to willful infringement,
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`Defendant shall produce any such opinions on which Defendant intends to rely to Plaintiffs no
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`later than April 5, 2019.
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`5.
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`Jv/arkman Claim Construction Hearing. A Madcman claim construction
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`hearing shall be held on at February 21, 2019 at 9:30 a.m. The Marlcman hearing is scheduled
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`for a total of six hours with each side having three hours. The pa1iies shall meet and confer
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`regarding narrowing and reducing the number of claim construction issues. On or before
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`November 16, 2018, the parties shall submit a Final Joint Claim Chart which shall include
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`citations to intrinsic evidence. The Plaintiffs shall submit to the court, a Joint Appendix of
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`Intrinsic Evidence (the "Joint Appendix") containing all intrinsic evidence relied upon in the
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`claim construction briefing. A sample table of contents of the Joint Appendix can be located on
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`this court's website at www.ded.uscomis.gov. The Joint Appendix shall be filed on the same
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`day as the answering claim construction briefs. The parties shall file opening claim construction
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`briefs on December 21, 2018, and answering claim construction briefs on January 25, 2019.
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`Briefing will be presented pursuant to the comi's Local Rules.
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`6.
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`Discovery. All fact discovery in this case shall be initiated so that it will be
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`completed on or before July 24, 2019. Opening expert repmis on issues on which a party bears
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 3 of 8 PageID #: 8922
`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 3 of 8 PagelD #: 6005
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`the burden of proof shall be served on or before August 8, 2019. Rebuttal expert reports shall be
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`served on or before October 7, 2019. Reply expert reports limited to responses on objective
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`indicia of nonobviousness shall be served on or before November 6, 2019. Expert Discovery in
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`this case shall be initiated so that it will be completed on or before February 21, 2020.
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`a.
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`Discovery and Scheduling Matters: Should counsel find they are unable
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`to resolve a discovery' or scheduling matter, the party seeking the relief shall contact chambers
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`at (302) 573-6470 to schedule a telephone conference. Not less than forty-eight hours prior to
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`the teleconference, the paiiies shall file with the court, via electronic means (CM/ECF), a Joint
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`Letter Agenda, which is non-argumentative, not to exceed two (2) pages outlining the issue(s) in
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`dispute. A sample letter can be located on this court's website at www.ded.uscourts.gov. After
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`the parties have had three (3) discovery teleconferences, they will be required to file a joint letter
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`showing good cause why the court should permit a fourth discovery teleconference. Should the
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`court find further briefing necessary upon conclusion of the telephone conference, unless
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`otherwise directed, the party seeking relief shall file with the court a TWO PAGE LETTER,
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`exclusive of exhibits, describing the issues in contention. The responding party shall file within
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`five (5) days from the date of service of the opening letter an answering letter ofno more than
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`TWO PAGES. The party seeking relief may then file a reply letter ofno more than TWO
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`PAGES within three (3) days from the date of service of the answering letter.
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`7.
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`Confidential Information and Papers filed under Seal. Should counsel find it
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`will be necessary to apply to the comi for a protective order specifying terms and conditions for
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`the disclosure of confidential information, they should confer and attempt to reach an agreement
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`1 Unless the comi otherwise orders, should counsel be unable to agree on the discovery of paper
`and electronic documents, the comi's "Default Standard for Discovery, Including Discovery of
`Electronically Stored Information" ("ESI") shall govern. The parties are negotiating a Discovery
`and ESI Protocol.
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 4 of 8 PageID #: 8923
`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 4 of 8 PagelD #: 6006
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`on a proposed form of order and submit it to the court within ten ( 10) days from the date of this
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`order. When filing papers under seal, counsel should deliver to the Clerk an original and two
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`copies of the papers.
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`If after making a diligent effort the parties are unable to agree on the contents of the joint
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`proposed protective order, then they shall follow the dispute resolution process outlined in
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`paragraph 6(a).
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`8.
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`Settlement Conference. Pursuant to 28 U.S.C. § 636, this matter is referred to
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`the United States Magistrate Judge for the purpose of exploring the possibility of a settlement.
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`The parties shall wait to be contacted by the assigned United States Magistrate Judge.
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`9.
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`Summary Judgment Motions.
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`a.
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`Defendant may file a summary judgment motion solely directed to the
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`availability of damages for Plaintiffs' claims for infringement arising from Defendant's
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`manufacturing activities and whether Plaintiffs are entitled to a jury trial. With respect to the
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`availability of damages for Plaintiffs, this summary judgment motion will be limited to the
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`availability of such damages claims (e.g., whether Plaintiffs have satisfied the marking statute
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`and whether Amgen's alleged manufacturing activities are protected under the safe harbor
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`provisions of Section 271 of the Patent Act) and shall not address the quantum of damages. Any
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`such motion for summary judgment shall be filed on or before March 8, 2019, any answering
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`brief in opposition to such motion for summary judgment shall be filed on or before March 22,
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`2019, and any reply brief in support of such motion for summary judgment shall be filed on or
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`before March 29, 2019.
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`b.
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`Prior to filing any other summary judgment motion, the parties must
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`submit letter briefs seeking permission to file the motion; provided, however, that no party may
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 5 of 8 PageID #: 8924
`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 5 of 8 PagelD #: 6007
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`file letter briefs seeking permission to file a motion for summary judgment if, prior to the
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`deadline for filing letter briefs seeking permission, the Court concludes that Plaintiffs are not
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`entitled to a jury trial. To the extent letter briefs seeking permission are not precluded by a
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`finding that Plaintiffs are not entitled to a jury trial, the opening letter brief shall be no longer
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`than five (5) pages and shall be filed with the Court on March 6, 2020. Answering letter briefs
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`shall be no longer than five (5) pages and filed with the court on March 20, 2020. Reply letter
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`briefs shall be no longer than three (3) pages and filed with the Court on March 27, 2020. If the
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`Court determines that argument is necessary to assist in the resolution of any request to file
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`summary judgment, it shall notify the parties of the date and time on which the Court will
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`conduct a telephone conference to hear such argument. Unless the Court directs otherwise, no
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`letter requests to file a motion for summary judgment may be filed at a time before the dates set
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`forth in this paragraph.
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`Briefing will be presented pursuant to the Court's Local Rules.
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`10.
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`Applications by Motion. Except as provided in this Scheduling Order or for
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`matters relating to scheduling, any application to the Court shall be by written motion filed, via
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`electronic means (CM/ECF). Unless otherwise requested by the Court, counsel shall not deliver
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`copies of papers or con-espondence to Chambers. Any non-dispositive motion should contain the
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`statement required by Local Rule 7 .1.1.
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`11.
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`Oral Argument. If the Court believes that oral argument is necessary, the Court
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`will schedule a hearing Pursuant to District of Delaware Local Rule 7 .1.4.
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`12.
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`Pretrial Conference. On June 29, 2020, beginning at 10:00 a.m., the Court will
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`hold a Pretrial Conference in Chambers. Unless otherwise ordered by the Court, the parties
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`should assume that filing the Joint Pretrial Order satisfies the pretrial disclosure requirement in
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 6 of 8 PageID #: 8925
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`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 6 of 8 PagelD #: 6008
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`Federal Rule of Civil Procedure 26(a)(3). A sample form of Pretrial Order can be located on this
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`court's website at www.ded.uscourts.g6v. On or before April 24, 2020, Plaintiffs' counsel shall
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`forward to Defendant's counsel a draft of the Pretrial Order containing the information Plaintiffs
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`propose to include in the draft. Defendant's counsel shall, in tum, provide to Plaintiffs' counsel
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`any comments on the Plaintiffs' draft, as well as the information Defendant proposes to include
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`in the proposed Pretrial Order by May 8, 2020. Motions in limine2: NO MOTIONS IN
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`LIM/NE SHALL BE FILED; instead, the parties shall be prepared to address their evidentiary
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`issues at the Pretrial Conference and during trial (before and after the trial day). The parties shall
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`file with the court the joint Proposed Final Pretrial Order in accordance with the terms and with
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`the information required by the form of Final Pretrial Order, which can be located on this court's
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`website at www.ded.uscomis.gov on or before May 29, 2020.
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`13.
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`Trial. This matter is scheduled for a fifteen-day jury trial beginning at 9:30 a.m.
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`on July 13, 2020.
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`14.
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`Scheduling. The parties shall contact chambers, at (302) 573-64 70, only in
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`situations where scheduling relief is sought, and only then when ALL participating counsel is on
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`the line for purposes of selecting a new date.
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`2 The parties should simply list, in an Exhibit to be attached to the Pretrial Order, the issues
`under a heading such as "Plaintiffs [name of party] List ofEvidentiary Issues It Intends To
`Raise."
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 7 of 8 PageID #: 8926
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`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 7 of 8 PagelD #: 6009
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`EXHIBIT A
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`PROPOSED DEADLINES
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`Event
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`Deadline
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`Initial Disclosures
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`May 29, 2018
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`Plaintiffs narrow list of Asse1ied Patents to no August 31, 2018
`more than eight patents
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`Plaintiffs identify no more than 20 claims for
`claim construction and trial
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`September 17, 2018
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`Exchange List of Terms to be Construed
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`October 12, 2018
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`Exchange List of Proposed Constructions
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`October 26, 2018
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`Deadline to Meet and Confer to Narrow
`Claim Construction Disputes
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`November 2, 2018
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`File Final Joint Claim Construction Chart
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`November 16, 2018
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`Simultaneous Opening Claim Construction
`Briefs
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`December 21, 2018
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`Substantial Completion of Document
`Production
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`January 11, 2019
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`Simultaneous Answering Claim Construction
`Briefs
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`January 25, 2019
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`Deadline to Amend Pleadings and Deadline to February 1, 2019
`Join Additional Parties
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`Markman Claim Construction Hearing
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`February 21, 2019, 9:30 a.m.
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`Opening Summary Judgment Brief by
`Defendant Directed to the Availability of
`Damages for Plaintiffs' Claims for
`Infringement Arising From Defendant's
`Manufacturing Activities and Whether
`Plaintiffs Are Entitled to Jury Trial
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`March 8, 2019
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`Answering Summary Judgment Brief
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`March 22, 2019
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`MEI 27240084v.2
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`Case 1:17-cv-01471-GMS Document 104 Filed 05/18/18 Page 8 of 8 PageID #: 8927
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`Case 1:17-cv-01407-GMS Document 105 Filed 05/18/18 Page 8 of 8 PagelD #: 6010
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`Reply Summary Judgment Brief
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`March 29, 2019
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`Disclosure of Reliance on Advice of Counsel March 29, 2019
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`If Defendant Intends to Rely on Advice of
`Counsel, Production of Any Such Opinions
`on Which Defendant Intends to Rely
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`April 5, 2019
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`Close of Fact Discovery
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`July 24, 2019
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`Opening Expert Reports on Issues on Which a August 8, 2019
`Party Bears the Burden of Proof
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`Responsive expert reports, including
`Plaintiffs' reports relating to objective indicia
`of non-obviousness
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`October 7, 2019
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`Reply expert reports limited to responses on
`objective indicia of non-obviousness
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`November 6, 2019
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`Close of Expert Discovery
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`Febrnary 21, 2020
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`Opening Letter Brief Seeking Permission to
`File Summary Judgment Motion Directed to
`Liability Issues
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`March 6, 2020
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`Answering Letter Brief Opposing Permission March 20, 2020
`to File Summary Judgment Motion Directed
`to Liability Issues
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`Reply Letter Brief Seeking Permission to File March 27, 2020
`Summary Judgment Motion Directed to
`Liability Issues
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`Plaintiffs Provide Draft Joint Pretrial Order
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`April 24, 2020
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`Defendant Provides Response to Plaintiffs'
`Draft Joint Pretrial Order
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`May 8, 2020
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`Joint Proposed Pretrial Order
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`May 29, 2020
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`Pretrial Conference
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`Trial (15 days)
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`June 29, 2020, 10:00 a.m.
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`July 13, 2020, 9:30 a.m.
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`MEI 27240084v.2
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