Case 1:17-cv-01407-CFC Document 201 Filed 10/30/18 Page 1 of 13 PageID #: 9006
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC. and CITY OF HOPE,
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`V.
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`AMGEN INC.
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`Plaintiffs,
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`Defendant,
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`Consol. Civ. No. 17-1407-CFC
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`AMENDED SCHEDULING ORDER
`This 3 0 ~ day of October 2018, the Court having conducted a Rule 16 Scheduling
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`Conference pursuant to Local Rule 16.2(b) on October I 0, 2018, IT IS ORDERED that:
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`I. Rule 26(a)(l) Initial Disclosures. Unless otherwise agreed to by the parties, the parties
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`shall make their initial disclosures required by Federal Rule of Civil Procedure 26(a)(l) on or
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`before May 29, 2018.
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`2. Joinder of Other Parties and Amendment of Pleadings. All motions to join other parties,
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`and to amend or supplement the pleadings, shall be filed on or before February I, 2019.
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`3. Application to Court for Protective Order. Should counsel find it will be necessary to apply
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`to the Court for a protective order specifying terms and conditions for the disclosure of confidential
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`information, counsel should confer and attempt to reach an agreement on a proposed form of order
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`and submit it to the Court within ten days from the date of this Order.
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`Any proposed protective order must include the following paragraph:
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`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
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`to disclose another party's information designated as confidential 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.
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`4. Disputes Relating to Discovery Matters and Protective Orders. Should counsel find they
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`are unable to resolve a dispute relating to a discovery matter or protective order, the parties shall
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`contact the Court's Case Manager to schedule an in-person conference/argument. Unless
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`otherwise ordered, by no later than 48 hours prior to the conference/argument, the party seeking
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`relief shall file with the Court a letter, not to exceed three pages, outlining the issues in dispute and
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`the party's position on those issues. The party shall submit as attachments to its letter (1) an
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`averment of counsel that the parties made a reasonable effort to resolve the dispute and that such
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`effort included oral communication that involved Delaware counsel for the parties, and (2) a draft
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`order for the Court's signature which identifies with specificity the relief sought by the party. By
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`no later than 24 hours prior to the conference/argument, any party opposing the application for
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`relief may file a letter, not to exceed three pages, outlining that party's reasons for its opposition.
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`Should any document(s) be filed under seal, a courtesy copy of the sealed document(s) must be
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`provided to the Court within one hour of e-filing the document(s). If a motion concerning a
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`discovery matter or protective order is filed without leave of the Court, it will be denied without
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`prejudice to the moving party's right to bring the dispute to the Court through the procedures set
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`forth in this paragraph.
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`5. Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to the Clerk
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`an original and one copy of the papers. A redacted version of any sealed document shall be filed
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`electronically within seven days of the filing of the sealed document.
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`6. Courtesy Copies. The parties shall provide to the Court two courtesy copies of all briefs
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`and one courtesy copy of any other document filed in support of any briefs (i.e., appendices,
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`exhibits, declarations, affidavits etc.). This provision also applies to papers filed under seal.
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`7. Reliance Upon Advice of Counsel. Defendant shall inform Plaintiffs whether it intends to
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`rely upon advice of counsel as a defense to willful infringement no later than March 29, 2019. If
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`Defendant elects to rely on advice of counsel as a defense to willful infringement, Defendant shall
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`produce any such opinions on which Defendant intends to rely to Plaintiffs no later than April 5,
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`2019.
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`8. Narrowing of Asserted Patents and Claims. Plaintiffs shall reduce the number of patents
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`as to which they claim infringement in this litigation to no more than eight (8) patents by August
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`31, 2018. After the August 31, 2018 deadline, Plaintiffs shall be permitted to select as many as
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`two (2) additional patents upon a showing of good cause. To date, Plaintiff has identified thirty(cid:173)
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`seven (3 7) claims for claim construction and trial. By December 2, 2018, Plaintiff shall identify
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`no more than twenty-five (25) claims from the group of thirty-seven (37) for claim construction
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`and trial.
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`9. Claim Construction Issue Identification. On or before October 12, 2018, the parties shall
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`exchange a list of those claim term(s)/phrase(s) that they believe need construction. On or before
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`October 26, 2018, the parties shall exchange a list of their proposed claim construction of those
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`term(s)/phrase(s). These lists will not be filed with the Court. On or before November 2, 2018,
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`the parties shall meet and confer regarding narrowing and reducing the number of claim
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`construction issues.
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`A Joint Claim Construction Chart shall be filed no later than November 16, 2018. The
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`Joint Claim Construction Chart, in Word format, shall be e-mailed simultaneously with filing to
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`cfc_civil@ded.uscourts.gov. The text for the Joint Claim Construction Chart shall be 14-point and
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`in a Times New Roman or similar typeface. The parties' Joint Claim Construction Chart should
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`identify for the Court the term(s)/phrase(s) of the claim(s) in issue and should include each party's
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`proposed construction of the disputed claim language with citation(s) only to the intrinsic evidence
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`in support of their respective proposed constructions. A text searchable pdf of the patent(s) in
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`issue as well as those portions of the intrinsic record relied upon shall be submitted with this Joint
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`Claim Construction Chart. In this joint submission, the parties shall not provide argument.
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`10. Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening brief, not
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`to exceed 5,500 words, on December 21, 2018. The Defendant shall serve, but not file, its
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`answering brief, not to exceed 8,250 words, on January 25, 2019. The Plaintiff shall serve, but not
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`file, its reply brief, not to exceed 5,500 words, on February 13, 2019. The Defendant shall serve,
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`but not file, its sur-reply brief, not to exceed 2,750 words, on February 22, 2019. The text for each
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`brief shall be 14-point and in a Times New Roman or similar typeface. Each brief must include a
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`certification by counsel that the brief complies with the type and number limitations set forth
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`above. The person who prepares the certification may rely on the word count of the word(cid:173)
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`processing system used to prepare the brief.
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`No later than February 25, 2019, the parties shall file a Joint Claim Construction Brief. The
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`parties shall copy and paste their untitled briefs into one brief, with their positions on each claim
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`term in sequential order, in substantially the form below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I. Agreed-upon Constructions
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`II. Disputed Constructions
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`A. [TERM l]
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`1. Plaintiffs Opening Position
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`2. Defendant's Answering Position
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`3. Plaintiffs Reply Position
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`4. Defendant's Sur-Reply Position
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`B. [TERM 2]
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`1. Plaintiffs Opening Position
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`2. Defendant's Answering Position
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`3. Plaintiffs Reply Position
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`4. Defendant's Sur-Reply Position
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`The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`11. Hearing on Claim Construction. Beginning at 9:30 a.m. on April 2, 2019, the Court will
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`hear argument on claim construction. Absent prior approval of the Court (which, if it is sought,
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`must be done so by joint letter submission no later than the date on which answering claim
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`construction briefs are due to be served), the parties shall not present testimony at the argument,
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`and the argument shall not exceed a total of six hours.
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`12. Fact Discovery. Document production shall be substantially completed by January 11,
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`2019. All fact discovery in this case shall be initiated so that it will be completed on or before July
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`24,2019.
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`13. Expert Reports. For the party who has the initial burden of proof on a subject matter, the
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`Federal Rule 26(a)(2) disclosure of expert testimony is due on or before August 8, 2019. The
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`disclosure to contradict or rebut evidence on the same matter identified by another party is due on
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`or before October 7, 2019. Reply expert reports from the party with the initial burden of proof,
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`which shall be limited to responses on objective indicia of nonobviousness, are due on or before
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`November 6, 2019. No other expert reports will be permitted without either the consent of all
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`parties or leave of the Court. Along with the submissions of the expert reports, the parties shall
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`advise of the dates and times of their experts' availability for deposition. Expert Discovery in this
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`case shall be initiated so that it will be completed on or before February 21, 2020.
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`14. Case Dispositive Motions.
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`a. Summary Judgment on Safe Harbor. Defendant may file a summary judgment
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`motion solely directed to the availability of damages for Plaintiffs' claims for infringement arising
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`from Defendant's manufacturing activities and whether Plaintiffs are entitled to a jury trial. With
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`respect to the availability of damages for Plaintiffs, this summary judgment motion will be limited
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`to the availability of such damages claims (e.g., whether Plaintiffs have satisfied the marking
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`statute 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.
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`Defendant shall file its opening brief, not to exceed 5,000 words, on or before March 8, 2019.
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`Plaintiff shall file its answering brief, not to exceed 5,000 words, on or before March 22, 2019.
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`Defendant shall file its reply brief, not to exceed 2,500 words, on or before March 29, 2019. The
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`text for each brief shall be 14-point and in a Times New Roman or similar typeface. Each brief
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`must include a certification by counsel that the brief complies with the type and number limitations
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`set forth above. The person who prepares the certification may rely on the word count of the word(cid:173)
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`processing system used to prepare the brief.
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`b. Other Summary Judgment Motions. The Court will address whether it will allow
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`additional motions for summary judgment after it rules on a motion for summary judgment filed
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`pursuant paragraph 14(a) or, if no motion pursuant to paragraph 14(a) is filed, after the time for
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`filing such motion has passed. If the court ultimately decides to allow other motions for summary
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`judgment, an opening brief, and affidavits, if any, in support of the motion shall be filed on or
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`before March 6, 2020. The opening brief shall not exceed 5,000 words. Any answering brief in
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`opposition to such motion for summary judgment shall be filed on or before March 20, 2020. The
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`answering brief shall not exceed 5,000 words. Any reply brief in support of such motion for
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`summary judgment shall be filed on or before March 27, 2020. The reply brief shall not exceed
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`2,500 words. The text for each brief shall be 14-point and in a Times New Roman or similar
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`typeface. Each brief must include a certification by counsel that the brief complies with the type
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`and number limitations set forth above. The person who prepares the certification may rely on the
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`word count of the word-processing system used to prepare the brief.
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`c. Concise Statement of Facts Requirement. Any motion for summary judgment
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`(including a summary judgment motion filed pursuant to paragraph 14(a)) shall be accompanied
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`by a separate concise statement detailing each material fact as to which the moving party contends
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`that there are no genuine issues to be tried that are essential for the court's determination of the
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`summary judgment motion (not the entire case). Any party who opposes the motion shall file and
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`serve with its opposing papers a separate document containing a single concise statement that
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`admits or disputes the facts set forth in the moving party's concise statement, as well as sets forth
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`all material facts as to which it is contended there exists a genuine issue necessary to be litigated.
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`d. Focus of the Concise Statement. When preparing the separate concise statement, a
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`party shall reference only the material facts that are absolutely necessary for the court to determine
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`the limited issues presented in the motion for summary judgment (and no others), and each
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`reference shall contain a citation to a particular affidavit, deposition, or other document that
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`supports the party's interpretation of the material fact. Documents referenced in the concise
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`statement may, but need not, be filed in their entirety if a party concludes that the full context
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`would be helpful to the court ( e.g., a deposition miniscript with an index stating what pages may
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`contain key words may often be useful). The concise statement shall particularly identify the page
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`and portion of the page of the document referenced. The document referred to shall have relevant
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`portions highlighted or otherwise emphasized. The parties may extract and highlight the relevant
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`portions of each referenced document, but shall ensure that enough of a document is attached to
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`put the matter in context. If a party determines that an entire deposition transcript should be
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`submitted, the party should consider whether a miniscript would be preferable to a full-size
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`transcript. If an entire miniscript is submitted, the index of terms appearing in the transcript must
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`be included, if it exists. When multiple pages from a single document are submitted, the pages
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`shall be grouped in a single exhibit.
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`e. Word Limits for Concise Statement. The concise statement in support of or in
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`opposition to a motion for summary judgment shall be no longer than 1,500 words. The text for
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`each statement shall be 14-point and in a Times New Roman or similar typeface. Each statement
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`must include a certification by counsel that the statement complies with the type and number
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`limitations set forth above. The person who prepares the certification may rely on the word count
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`of the word-processing system used to prepare the statement.
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`f. Affidavits and declarations. Affidavits or declarations setting forth facts and/or
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`authenticating exhibits, as well as exhibits themselves, shall be attached only to the concise
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`statement (i.e., not briefs).
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`g. Scope of Judicial Review. When resolving motions for summary judgment, the
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`court shall have no independent duty to search and consider any part of the record not otherwise
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`referenced in the separate concise statements of the parties. Further, the court shall have no
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`independent duty to review exhibits in their entirety, but rather will review only those portions of
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`the exhibits specifically identified in the concise statements. Material facts set forth in the moving
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`party's concise statement will be deemed admitted unless controverted by a separate concise
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`statement of the opposing party.
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`15. Applications by Motion. Except as otherwise specified herein, any application to the Court
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`shall be by written motion. Any non-dispositive motion should contain the statement required by
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`Local Rule 7.1.1.
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`16. Pretrial Conference. On June 29, 2020, the Court will hold a Rule I 6( e) final pretrial
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`conference in in Court with counsel beginning at I 0:00 a.m. On or before April 24, 2020,
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`Plaintiffs' counsel shall forward to Defendant's counsel a draft of the Pretrial Order containing the
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`information Plaintiffs propose to include in the draft. Defendant's counsel shall, in tum, provide
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`to Plaintiffs' counsel any comments on the Plaintiffs' draft, as well as the information Defendant
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`proposes to include in the proposed Pretrial Order by May 8, 2020. The parties shall file a joint
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`proposed final pretrial order in compliance with Local Rule 16.3( c) no later than 5 :00 p.m. on May
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`29, 2020.
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`17. Motions in Limine. Motions in limine shall not be separately filed. All in limine requests
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`and responses thereto shall be set forth in the proposed pretrial order. Each party shall be limited
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`to three in limine requests, unless otherwise permitted by the Court. The in limine request and any
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`response shall contain the authorities relied upon; each in limine request may be supported by a
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`maximum of three pages of argument and may be opposed by a maximum of three pages of
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`argument, and the party making the in limine request may add a maximum of one additional page
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`in reply in support of its request. If more than one party is supporting or opposing an in limine
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`request, such support or opposition shall be combined in a single three-page submission ( and, if
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`the moving party, a single one-page reply). No separate briefing shall be submitted on in limine
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`requests, unless otherwise permitted by the Court.
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`18. Compendium of Cases. A party may submit with any briefing two courtesy copies of a
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`compendium of the selected authorities on which the party would like the Court to focus. The
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`parties should not include in the compendium authorities for general principles or uncontested
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`points of law ( e.g., the standards for summary judgment or claim construction). An authority that
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`is cited only once by a party generally should not be included in the compendium. An authority
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`already provided to the Court by another party should not be included in the compendium.
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`19. Jury Instructions, Voir Dire and Special Verdict Forms. Where a case is to be tried to a
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`jury, pursuant to Local Rules 47.l(a)(2) and 51.1, the parties should file (i) proposed voir dire, (ii)
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`preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms no later
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`than 5 :00 p.m. on the third business day before the date of the final pretrial conference. The parties
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`shall submit simultaneously with filing each of the foregoing four documents in Word format to
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`cfc _ civil@ded.uscourts.gov.
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`20. Trial.· This matter is scheduled for a fifteen-day jury trial beginning at 9:30 a.m. on July
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`13, 2020, with the subsequent trial days beginning at 9:30 a.m. Until the case is submitted to the
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`jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial will be timed, as
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`counsel will be allocated a total number of hours in which to present their respective cases.
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`21. ADR Process. Pursuant to 28 U.S.C. § 636, this matter is referred to the United States
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`Magistrate Judge for the purpose of exploring the possibility of alternative dispute resolution.
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`C1e? a~
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`En sTATEs 01sTru7u
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`EXHIBIT A
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`DEADLINES
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`Event
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`Deadline
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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 28, 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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`Plaintiffs identify no more than 25 claims for December 2, 2018
`claim construction and trial
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`Plaintiff Serves Opening Claim Construction December 21, 2018
`Brief
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`Substantial Completion of Document
`Production
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`Defendant Serves Answering Claim
`Construction Brief
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`January 11, 2019
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`January 25, 2019
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`Amend Pleadings and/or Join Additional
`Parties
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`February 1, 2019
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`Plaintiff Serves Reply Claim Construction
`Brief
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`February 13, 2019
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`Defendant Serves Sur-Reply Claim
`Construction Brief
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`February 22, 2019
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`Parties File Joint Claim Construction Brief
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`February 25, 2019
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`Opening Summary Judgment Brief on Safe
`Harbor Defense
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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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`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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`Markman Claim Construction Hearing
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`April 2, 2019 at 9:30 a.m.
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`Production of Counsel Opinions on Which
`Defendants Intend to Rely
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`April 5, 2019
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`Close of Fact Discovery
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`Opening Expert Reports
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`Responsive Expert Reports
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`Reply Expert Reports
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`Close of Expert Discovery
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`Case Dispositive Motions If Permitted -
`Opening Brief
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`Case Dispositive Motions If Permitted -
`Answering Brief
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`Case Dispositive Motions If Permitted -
`Reply Brief
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`July 24, 2019
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`August 8, 2019
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`October 7, 2019
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`November 6, 2019
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`February 21, 2020
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`March 6, 2020
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`March 20, 2020
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`March 27, 2020
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`Plaintiffs Serve Draft Joint Pretrial Order
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`April 24, 2020
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`Defendants Serve Response to Draft Joint
`Pretrial Order
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`May 8, 2020
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`File 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 at 10:00 a.m.
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`July 13, 2020 at 9:30 a.m.
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