Case 1:17-cv-01407-CFC Document 504 Filed 09/18/19 Page 1 of 10 PageID #: 36459
`Case 1:17-cv-01407-CFC Document 504 Filed 09/18/19 Page 1 of 10 PagelD #: 36459
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`C. A. No.: 17-1407-CFC
`(CONSOLIDATED)
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`GENENTECH, INC. and CITY OF HOPE
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`Plaintiffs,
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`v.
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`Defendant.
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`AMGEN INC.
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`AMENDED SCHEDULING ORDER
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`This l f1“ day of Jala‘l'edt/ , 2019, the Court having ruled on the parties’
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`requests (see D]. 481, 484) to extend certain dates and deadlines in the Scheduling Order
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`entered on November 5, 2018 (DJ. 209) in order to provide the parties with sufficient time to
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`complete fact discovery]:
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`lT IS ORDERED that the following amended deadlines and dates, which are set
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`forth in the chart attached as Exhibit A, shall govern the remainder of this actionz:
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`l.
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`Disputes Relating to Discoveg Matters and Protective Orders. Should counsel
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`find they are unable to resolve a dispute relating to a discovery matter or protective order, the
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`parties shall contact the Court's Case Manager to schedule an in-person conference/argument.
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`(a)
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`Unless otherwise ordered, by no later than 72 hours prior to the
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`conference/argument, the party seeking relief shall file with the Court a letter, not to exceed
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`three pages, outlining the issues in dispute and the party’s position on those issues. The party
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`' The parties will meet and confer to attempt to resolve their dispute about the scope of discovery
`permitted during the extension, and if necessary, approach the Court for assistance.
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`2 This Amended Scheduling Order also incorporates certain provisions that the Court added to its
`form scheduling order in April 2019.
`It also omits deadlines from the Court’s prior Scheduling
`Order that have already passed, but which are unchanged by this Amended Scheduling Order.
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`

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`shall submit as attachments to its letter (1) an averment of counsel that the parties made a
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`reasonable effort to resolve the dispute and that such effort included oral communication that
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`involved Delaware counsel for the parties, and (2) a draft order for the Court’s signature which
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`identifies with specificig the relief sought by the party. The party shall file concurrently with its
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`letter a motion that in no more than one paragraph sets forth the relief sought.
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`(b)
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`By no later than 48 hours prior to the conference/argument, any party
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`opposing the application for relief may file a letter, not to exceed three pages, outlining that
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`party's reasons for its opposition.
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`(c)
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`Two hard copies of the parties’ letters and attachments must be provided
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`to the Court within one hour of e—filing the document(s). The hard copies shall comply with
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`paragraphs 3 and 4 of this Order.
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`(d)
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`If a motion concerning a discovery matter or protective order is filed
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`without leave of the Court, it will be denied without prejudice to the moving party's right to
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`bring the dispute to the Court through the procedures set forth in this paragraph.
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`2.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk an original and two copies of the papers. A redacted version of any sealed document
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`shall be filed electronically within seven days of the filing of the sealed document.
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`3.
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`Hard Copies. The parties shall provide to the Court two hard copies of all letters
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`filed pursuant to paragraph 1 of this Order, all briefs, and any other document filed in support
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`of any such letters and briefs (i.e., the concise statement of facts filed pursuant to paragraph 8(0)
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`of this Order, appendices, exhibits, declarations, affidavits, etc.). This provision also applies to
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`papers filed under seal. Exhibits and attachments shall be separated by tabs. Each exhibit and
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`attachment shall have page numbers of some sort such that a particular page of an exhibit or
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`attachment can be identified by a page number. The parties shall take all practical measures to
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`avoid filing multiple copies of the same exhibit or attachment. The parties should highlight the
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`text of exhibits and attachments they wish the Court to read. The parties are encouraged to
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`include in an exhibit or attachment only the pages of the document in question that (1) identify
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`the document (e.g., the first page of a deposition transcript or the cover page of a request for
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`discovery) and (2) are relevant to the issue(s) before the Court.
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`4.
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`Pinpoint Citations. Pinpoint citations are required in all briefing, letters, and
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`concise statements of facts. The Court will ignore any assertions of controverted facts and
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`controverted legal principles not supported by a pinpoint citation to, as applicable: the record, an
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`attachment or exhibit, and/or case law or appropriate legal authority. See United States v.
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`Dunkel, 927 F.2d 955, 956 (“Judges are not like pigs, hunting for truffles buried in briefs”).
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`5.
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`Fact Discovery. All fact discovery in this case shall be completed on or before
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`September 30, 2019.
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`6.
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`Disclosure of Expert Testimony.
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`(a) Expert Reports.3 For the party who has the initial burden of proof on a
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`subject matter, the Federal Rule 26(a)(2) disclosure of expert testimony (“Opening Report”) is
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`due on or before November 15, 2019. The supplemental disclosure to contradict or rebut
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`evidence on the same matter identified by another party (“Rebuttal Report”) is due on or before
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`January 15, 2020. Reply expert reports (“Reply Report”) from the party with the initial burden
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`of proof are due on or before February 7, 2020. Amgen shall serve any reports addressing its
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`affirmative defense to infringement pursuant to Section 271(c)(1)’s safe harbor-(Genaflech‘s'
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`3 The difference between the parties’ proposals below is the timing of Amgen’s expert report
`addressing Section 271(c)(1) safe harbor.
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` . a": “ =‘
`‘----."s-:::::mRebuttal
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`Report responding to Plaintiffs’ Opening Report on infringement that puts Amgen on notice of
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`the scope ofpre—launch conduct alleged to infringe{/
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` : o Jec Ivem re
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`other expert reports will be permitted without either the consent of all parties or leave of the
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`Court. Along with the submissions of the expert reports, the parties shall provide the dates and
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`times of their experts’ availability for deposition. Depositions of experts shall be completed on
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`or before February 28, 2020.
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`(b) Obiections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
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`509 US. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`7.
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`Indefiniteness. The parties shall file their letter submissions of no more than
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`1,000 words in 14-point font in support of their positions with respect to the indefiniteness issue,
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`together with an expert declaration in support of the same, by no later than September 27, 2019.
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`The Court will convene a hearing on October 16, 2019 at 9:00 am, at which time the parties
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`may adduce expert testimony and make argument with respect to the issue of whether the
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`“following fermentation” claim limitation is indefinite.
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`8.
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`Case Dispositive Motions.
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`(a)
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`Summag Judgment. No summaryjudgment motions are permitted
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`without leave of Court. If the court ultimately decides to allow motions for summaryjudgment,
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`an opening brief, and affidavits, if any, in support of the motion shall be filed on or before March
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`6, 2020. Any answering brief in opposition to such motion for summaryjudgment shall be filed
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`on or before March 20, 2020. Any reply brief in support of such motion for summaryjudgment
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`shall be filed on or before March 27, 2020.
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`(b) Word limits combined with Daubert motion word limits. Each SIDE will be
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`limited to a combined total of 10,000 words for all opening briefs, a combined total of 10,000
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`words for all answering briefs, and a combined total of 5,000 words for all reply briefs regardless
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`of the number of case dispositive motions that are filed.
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`In the event that a party files, in
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`addition to a case dispositive motion, a Daubert motion to exclude or preclude all or any portion
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`of an expert’s testimony, the total amount of words permitted for all case dispositive and
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`Daubert motions shall be increased for each SIDE to 12,500 words for all opening briefs, 12,500
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`words for all answering briefs, and 6,250 words for all reply briefs. The text for each brief shall
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`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-
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`processing system used to prepare the brief
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`(c)
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`Concise Statement of Facts Requirement. Any motion for summary
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`judgment (including a summaryjudgment motion filed pursuant to paragraph 8(a)) shall be
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`accompanied by a separate concise statement detailing each material fact as to which the moving
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`party contends that there are no genuine issues to be tried that are essential for the Court’s
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`determination of the summaryjudgment motion (not the entire case).4 Any party who opposes
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`4 A party does not satisfy the requirements of this paragraph by stating that an accused
`instrumentality infringes an asserted claim or asserted claim limitation. The party must detail
`each material fact in its concise statement of facts. The concise statement of facts play an
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`the motion shall file and serve with its opposing papers a separate document containing a single
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`concise statement that admits or disputes the facts set forth in the moving party’s concise
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`statement, as well as sets forth all material facts as to which it is contended there exists a genuine
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`issue necessary to be litigated.
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`(d)
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`Focus of the Concise Statement. When preparing the separate concise
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`statement, a party shall reference only the material facts that are absolutely necessary for the
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`court to determine the limited issues presented in the motion for summary judgment (and no
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`others), and each reference shall contain a citation to a particular affidavit, deposition, or other
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`document that supports the party’s interpretation of the material fact. Documents referenced in
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`the concise statement may, but need not, be filed in their entirety if a party concludes that the full
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`context would be helpful to the court (e.g., a deposition miniscript with an index stating what
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`pages may contain key words may often be useful). The concise statement shall particularly
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`identify the page and portion of the page of the document referenced. The document referred to
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`shall have relevant portions highlighted or otherwise emphasized. The parties may extract and
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`highlight the relevant portions of each referenced document, but shall ensure that enough of a
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`document is attached to put the matter in context. If a party determines that an entire deposition
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`transcript should be submitted, the party should consider whether a miniscript would be
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`preferable to a full-size transcript. If an entire miniscript is submitted, the index of terms
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`appearing in the transcript must be included, if it exists. When multiple pages from a single
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`document are submitted, the pages shall be grouped in a single exhibit.
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`(6)
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`Word Limits for Concise Statement. The concise statement in support of
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`or in opposition to a motion for summaryjudgment shall be no longer than 1,750 words. The
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`important gatekeeping role in the Court’s consideration of summaryjudgment motions.
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`text for each statement shall be 14-point and in a Times New Roman or similar typeface. Each
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`statement must include a certification by counsel that the statement complies with the type and
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`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 statement.
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`(f)
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`Affidavits and declarations. Affidavits or declarations setting forth facts
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`and/or authenticating exhibits, as well as exhibits themselves, shall be attached only to the
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`concise statement (i.e., not briefs).
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`(g)
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`Scope of Judicial Review. When resolving motions for summary
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`judgment, the court shall have no independent duty to search and consider any part of the record
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`not otherwise referenced in the separate concise statements of the parties. Further, the court shall
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`have no independent duty to review exhibits in their entirety, but rather will review only those
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`portions of the exhibits specifically identified in the concise statements. Material facts set forth
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`in the moving party’s concise statement will be deemed admitted unless controverted by a
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`separate concise statement of the opposing party.
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`9.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion. Any non-dispositive motion should contain the statement
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`required by Local Rule 7.1.1.
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`10.
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`Pretrial Conference. On June 29, 2020, the Court will hold a Rule 16(e) final
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`pretrial conference in in Court with counsel beginning at 10:00 am. On or before April 24,
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`2020, Plaintiffs’ counsel shall forward to Defendant’s counsel a draft of the Pretrial Order
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`containing the information Plaintiffs propose to include in the draft. Defendant’s counsel shall, in
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`turn, provide to Plaintiffs’ counsel any comments on the Plaintiffs’ draft, as well as the
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`information Defendant proposes to include in the proposed Pretrial Order by May 8, 2020. The
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`parties shall file ajoint proposed final pretrial order in compliance with Local Rule 16.3(c) no
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`later than 5:00 pm. on May 29, 2020.
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`ll.
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`Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
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`be limited to three in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three pages of argument and may be opposed by a maximum of
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`three pages of argument, and the party making the in limine request may add a maximum of one
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`additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three-
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`page submission (and, if the moving party, a single one-page reply). No separate briefing shall
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`be submitted on in limine requests, unless otherwise permitted by the Court.
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`12.
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`Compendium of Cases. A party may submit with any briefing two courtesy
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`copies of a compendium of the selected authorities on which the party would like the Court to
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`focus. The parties should not include in the compendium authorities for general principles or
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`uncontested points of law (e.g., the standards for summary judgment or claim construction). An
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`authority that is cited only once by a party generally should not be included in the compendium.
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`An authority already provided to the Court by another party should not be included in the
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`compendium. Compendiums of cases shall not be filed electronically with the Court, but a
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`notice of service of a compendium of cases shall be filed electronically with the Court. Motions
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`in limine shall comply with paragraph 3 of this Order.
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`[3.
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`Jury Instructions, Voir Dire and Special Verdict Forms. Where a case is to be
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`tried to ajury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed
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`voir dire, (ii) preliminaryjury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 5:00 pm. on the third business day before the date of the final pretrial
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`conference. The parties shall submit simultaneously with filing each of the foregoing four
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`documents in Word format to cfc civil@ded.uscourts.gov.
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`l4.
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`Tr_Lal. This matter is scheduled for a fifteen-dayjury trial beginning at 9:30 am.
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`on July 13, 2020, with the subsequent trial days beginning at 9:30 am. Until the case is
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`submitted to thejury for deliberations, thejury will be excused each day at 4:30 pm. The trial
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`will be timed, as counsel will be allocated a total number of hours in which to present their
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`respective cases.
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`15.
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`ADR Process. This matter has been referred to a magistratejudge to explore the
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`possibility of alternative dispute resolution.
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` United States District Jud
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`Case 1:17-cv-01407-CFC Document 504 Filed 09/18/19 Page 10 of 10 PageID #: 36468
`Case 1:17-cv-01407-CFC Document 504 Filed 09/18/19 Page 10 of 10 PageID #: 36468
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`EXHIBIT A
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`DEADLINES
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`8/8/19
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`1 1/ 15/ l 9
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`Opening Expert Reports “for
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`burden of proof on a subject
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`matter”
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`“Followin ; Fermentation”
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`Oo,enin Briefs
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`0- nosition Briefs
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`Re 1 Briefs
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`Letter Submission on
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`9/27/19
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`9/27/19
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`lndefiniteness, with Expert _Declaration
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