Free Order - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 11 12 v. 13 TECO DIAGNOSTICS, et al., 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 17, 2008 at 9:30 a.m., the Court convened an Early Neutral Evaluation Conference (ENE). Settlement of the case could not be ANTICANCER, INC., Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 07cv2294-L (BLM) CASE MANAGEMENT CONFERENCE ORDER REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS (Fed. R. Civ. P. 16) (Local Rule 16.1) (Fed. R. Civ. P. 26) (Patent Local Rules) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

reached at the ENE, and the Court therefore discussed compliance with Rule 16 of the Federal Rules of Civil Procedure and the Patent Local Rules. After consulting with the attorneys of record for the parties

and being advised of the status of the case, and good cause appearing, IT IS HEREBY ORDERED: 1. Any motion to join other parties, to amend the pleadings, or

to file additional pleadings shall be filed on or before April 18, 2008. 2. Disclosure of Asserted Claims and Preliminary Infringement On or before March 31, 2008, Plaintiff shall serve on all

Contentions.

parties a "Disclosure of Asserted Claims and Preliminary Infringement

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Contentions."

Separately for each opposing party, the "Disclosure of

Asserted Claims and Preliminary Infringement Contentions" must contain the following information: a. Each claim of each patent in the suit that is allegedly

infringed by each opposing party; b. apparatus, Separately product, for each asserted claim, each or accused other

device,

process,

method,

act,

instrumentality ("Accused Instrumentality") of each opposing party of which the party is aware. This identification must be as specific as

possible. Each product, device and apparatus must be identified by name or model number, if known. Each method or process must be identified by

name, if known, or by any product, device, or apparatus which, when used, allegedly results in the practice of the claimed method or process; c. A chart identifying specifically where each element of

each asserted claim is found within each Accused Instrumentality, including for each element that such party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or

material(s) in the Accused Instrumentality that performs the claimed function; d. Whether each element of each asserted claim is claimed to

be literally present and/or present under the doctrine of equivalents in the Accused Instrumentality; e. For any patent that claims priority to an earlier

application, the priority date to which each asserted claim allegedly is entitled; and f. own apparatus, If a party claiming patent infringement asserts that its product, device, process, method, act, or other

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instrumentality

practices

the

claimed

invention,

the

party

must

identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim. 3. Document of Production Asserted Accompanying and Disclosure. Preliminary With the

"Disclosure

Claims

Infringement

Contentions," the party claiming patent infringement must produce to each opposing party, or make available for inspection and copying, the following documents in the possession, custody and/or control of that party: a. Documents (e.g., contracts, purchase orders, invoices,

advertisements, marketing materials, offer letters, beta site testing agreements, and third party or joint development agreements) sufficient to evidence each discussion with, disclosure to, or other manner of providing to a third party, or sale of or offer to sell, the claimed invention prior to the date of application for the patent in suit. A

party's production of a document as required herein does not constitute an admission that such document evidences or is prior art under 35 U.S.C. § 102; b. All documents evidencing the conception, reduction to

practice, design, and development of each claimed invention, which were created on or before the date of application for the patent in suit or the priority date identified pursuant to P.L.R. 3.1(e), whichever is earlier; and c. A copy of the file history for each patent in suit and

each application to which a claim for priority is made under P.L.R. 3.1(e). ///

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The producing party must separately identify by production number which documents correspond to each category. The party claiming patent infringement is required to use its best efforts to obtain the documents to make a timely disclosure if the documents identified above are not in the possession, custody and/or control of that party. 4. Preliminary Invalidity Contentions. On or before May 30,

2008, Defendants shall serve on all parties its "Preliminary Invalidity Contentions" which must contain the following information: a. The identity of each item of prior art that allegedly This includes

anticipates each asserted claim or renders it obvious.

information about any alleged knowledge or use of the invention in this country prior to the date of invention of the patent. Each prior art

patent must be identified by its number, country of origin, and date of issue. Each prior art publication must be identified by its title, date of publication, and where feasible, author and publisher. Prior art

under 35 U.S.C. § 102(b) must be identified by specifying the item offered for sale or publicly used or known, the date the offer or use took place or the information became known, and the identity of the person or entity which made the use or which made and received the offer, or the person or entity which made the information known or to whom it was made known. Prior art under 35 U.S.C. § 102(f) must be

identified by providing the name of the person(s) from whom and the circumstances under which the invention or any part of it was derived. Prior art under 35 U.S.C. § 102(g) must be identified by providing the identities of the person(s) or entities involved in and the

circumstances surrounding the making of the invention before the patent applicant(s);

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b.

Whether each item of prior art anticipates each asserted If a combination of items of prior art

claim or renders it obvious.

makes a claim obvious, each such combination and the motivation to combine such items, must be identified; c. A chart identifying where specifically in each alleged

item of prior art each element of each asserted claim is found, including for each element that such party contends is governed by 35 U.S.C. § 112(6), in the identity of of the art structure(s), that performs act(s), the or

material(s) function; d.

each

item

prior

claimed

Any grounds of invalidity based on indefiniteness under

35 U.S.C. § 112(2) of any of the asserted claims; and e. Any grounds of invalidity based on lack of written

description, lack of enabling disclosure, or failure to disclose the best mode under 35 U.S.C. § 112(1). 5. Document Production Accompanying Preliminary Invalidity

Contentions.

With the "Preliminary Invalidity Contentions," the party

opposing a claim of patent infringement must produce or make available for inspection and copying: a. Source code, specifications, schematics, flow charts, or other documentation sufficient to show the

formulas,

operation of any aspects or elements of any Accused Instrumentality identified by the patent claimant in the "Disclosure of Asserted Claims and Preliminary Infringement Contentions;" b. A copy of each item of prior art identified in the

Preliminary Invalidity Contentions, which does not appear in the file history of the patent(s) at issue. To the extent any such item is not

in English, an English translation of the portion(s) relied upon must be

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produced. 6. Evidence. a. On or before June 13, 2008, the parties shall Exchange of Proposed Claim Constructions and Extrinsic

simultaneously exchange a preliminary proposed construction of each claim term, phrase, or clause which the parties have identified for claim construction purposes. Each such "Preliminary Claim Construction" will also for each element which any party contends is governed by 35 U.S.C. § 112(6), identify the structure(s), act(s), or material(s) corresponding to that element. b. At the same time the parties exchange their respective

"Preliminary Claim Constructions," they must also provide a preliminary identification of extrinsic evidence, including without limitation, dictionary definitions, citations to learned treatises and prior art, and testimony of percipient and expert witnesses they contend support their respective claim constructions. The parties must identify each

such item of extrinsic evidence by production number or produce a copy of any such item not previously produced. With respect to any such

witness, percipient or expert, the parties must also provide a brief description of the substance of that witness' proposed testimony. c. On or before June 27, 2008, the parties shall

simultaneously exchange "Responsive Claim Constructions" identifying whether the responding party agrees with the other party's proposed construction, or identify an alternate construction in the responding party's preliminary construction, or set forth the responding party's alternate construction. d. At the same time the parties exchange their respective

"Responsive Claim Constructions," they must also provide a preliminary

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identification of extrinsic evidence, including without limitation, dictionary definitions, citations to learned treatises and prior art, and testimony of percipient and expert witnesses they contend support any responsive claim constructions. The parties must identify each such item of extrinsic evidence by production number or produce a copy of any such item not previously produced. With respect to any such witness,

percipient or expert, the parties must also provide a brief description of the substance of that witness' proposed testimony. e. The parties must thereafter meet and confer for the

purposes of narrowing the issues and finalizing preparation of a Joint Claim Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing Statement. 7. Statement. file a Joint Claim Construction Chart, Worksheet, and Hearing

On or before July 11, 2008, the parties shall complete and Claim Construction Chart, Joint Claim Construction

Joint

Worksheet, and Joint Hearing Statement. a. The Joint Claim Construction Chart must have a column

listing complete language of disputed claims with the disputed terms in bold type and separate columns for each party's proposed construction of each disputed term. Each party's proposed construction of each disputed claim term, phrase, or clause, must identify all references from the specification or prosecution history that support that construction and an identification of any extrinsic evidence known to the party on which it intends to rely either to support its proposed construction of the claim or to oppose any other party's proposed construction of the claim, including, but not limited to, as permitted by law, dictionary

definitions, citations to learned treatises and prior art, and testimony of percipient and expert witnesses.

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b. format

The parties Joint Claim Construction Worksheet must be in set forth in Appendix A and include any proposed

constructions to which the parties agree, as well as those in dispute. The parties must jointly submit the Joint Claim Construction Worksheet on computer disk in both Word and Wordperfect format or in such other format as the court may direct. c. The Joint Hearing Statement must include: 1. The anticipated length of time necessary for the

Claim Construction Hearing; and 2. Whether any party proposes to call one or more

witnesses, including experts, at the Claim Construction Hearing, the identity of each such witness, and for each expert, a summary of each opinion to be offered in sufficient detail to permit a meaningful deposition of that expert. d. At the Court's discretion, within five (5) calendar days

of the submission of the Joint Claim Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing Statement, the Court will hold a status conference with the parties, in person or by telephone, to discuss the schedule, witnesses and any other matters regarding the Claim Construction Hearing. 8. Completion of Claim Construction Discovery. The parties shall

complete all discovery, including any depositions of any witnesses, including experts, the parties intend to use in the Claim Construction Hearing by August 8, 2008. except as to experts. Fed. R. Civ. P. 30 applies to depositions,

An expert witness identified in a party's Joint The

Hearing Statement may be deposed on claim construction issues.

identification of said expert in the Joint Hearing Statement may be deemed good cause for a further deposition on all substantive issues.

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9.

Claim Construction Briefs. a. On or before August 22, 2008, the parties shall

simultaneously file and serve opening briefs and any evidence supporting their claim construction. b. On or before September 5, 2008, the parties shall

simultaneously file and serve briefs responsive to the opposing party's opening brief and any evidence directly rebutting the supporting

evidence contained in the opposing party's opening brief. 10. Claim Construction Hearing. On October 10, 2008 at 9:30 a.m.,

the Honorable M. James Lorenz will conduct a Claim Construction Hearing, to the extent that parties or the court believe a hearing is necessary for construction of the claims at issue. 11. Final Contentions. Each party's "Preliminary Infringement

Contentions" and "Preliminary Invalidity Contentions" will be deemed to be that party's final contentions, except as set forth below. a. If a party claiming patent infringement believes in good

faith that the Court's Claim Construction Ruling or a document produced with the Preliminary Invalidity Contentions so require, not later than thirty (30) days after service by the Court of its Claim Construction Ruling, that party may serve "Final Infringement Contentions" without leave of court that amend its "Preliminary Infringement Contentions." b. Not later than fifty (50) days after service by the Court

of its Claim Construction Ruling, each party opposing a claim of patent infringement may serve "Final Invalidity Contentions" without leave of court that amend its "Preliminary Invalidity Contentions" if: i) a party claiming patent infringement has served "Final Infringement

Contentions," or ii) the party opposing a claim of patent infringement believes in good faith that the Court's Claim Construction Ruling so

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requires. 12. Amendment to Contentions. Amendment or modification of the

Preliminary or Final Infringement Contentions or the Preliminary or Final Invalidity Contentions, other than as expressly permitted in the section above, may be made only by order of the court, which will be entered only upon a showing of good cause. 13. Opinion of Counsel. Not later than thirty (30) days after

filing of the Claim Construction Order, each party opposing a claim of patent infringement that will rely on an opinion must: a. Produce or make available for inspection and copying the

opinion(s) and any other documentation relating to the opinion(s) as to which that party agrees the attorney-client or work product protection has been waived; and b. Serve a privilege log identifying any other documents,

except those authored by counsel acting solely as trial counsel, relating to the subject matter of the opinion(s) which the party is withholding on the grounds of attorney-client privilege or work product protection. A party opposing a claim of patent infringement who does

not comply with this requirement will not be permitted to rely on an opinion of counsel as part of a defense to willful infringement absent a stipulation of all parties or by order of the court, which will be entered only upon showing of good cause. 14. On or before December 5, 2008, all parties shall exchange with

all other parties a list of all expert witnesses expected to be called at trial. The list shall include the name, address, and telephone

number of the expert and a brief statement identifying the subject areas as to which the expert is expected to testify. The list shall also

include the normal rates the expert charges for deposition and trial

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testimony. On or before December 31, 2008, any party may supplement its designation in response to any other party's designation so long as that party has not previously retained an expert to testify on that subject. 15. Each expert witness designated by a party shall prepare a

written report to be provided to all other parties no later than March 27, 2009, containing the information required by Fed. R. Civ. P. 26(a)(2)(A) and (B). Except as provided in paragraph 16 below, any

party that fails to make these disclosures shall not, absent substantial justification, be permitted to use evidence or testimony not disclosed at any hearing or at the time of trial. In addition, the Court may

impose sanctions as permitted by Fed. R. Civ. P. 37(c). 16. Any party, through any expert designated, shall in accordance

with Fed. R. Civ. P. 26(a)(2)(C) and Fed. R. Civ. P. 26(e), supplement any of its expert reports regarding evidence intended solely to

contradict or rebut evidence on the same subject matter identified in an expert report submitted by another party. Any such supplemental reports are due on or before April 24, 2009. 17. 27, 2009. 2009. All fact discovery shall be completed on or before February All expert discovery shall be completed on or before May 22,

"Completed" means that all discovery under Rules 30-36 of the

Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice, and response as set forth in the Federal Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Civil Local Rules 16.5(k) and 26.1(a). All discovery motions shall be filed within thirty

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(30) days after counsel have met and conferred and reached an impasse with regard to any particular discovery issue, but in no event shall discovery motions be filed more than sixty (60) days after the date upon which the event giving rise to the discovery dispute occurred. For oral

discovery, the event giving rise to the discovery dispute is the completion of the transcript of the affected portion of the deposition. For written discovery, the event giving rise to the discovery dispute is the service of the response, or, if no response was served, the initial date the response was due. In addition, all discovery motions must be

filed within thirty (30) days after the close of discovery. 18. All motions, other than motions to amend or join parties, or Motions

motions in limine, shall be filed on or before June 5, 2009.

will not be heard or calendared unless counsel for the moving party has obtained a motion hearing date from the law clerk of the judge who will hear the motion. Be advised that the parties must file their moving

papers within three (3) days of receiving the motion hearing date from the Court. Failure to timely request a motion date may result in the Motions will not be heard unless you have

motion not being heard.

obtained a date from the judge's law clerk. Briefs or memoranda in support of or in opposition to any pending motion shall not exceed twenty-five (25) pages in length without permission of the judge who will hear the motion. No reply memorandum

shall exceed ten (10) pages without leave of the judge who will hear the motion. 19. A Mandatory Settlement Conference shall be conducted on

February 9, 2009 at 9:30 a.m. in the chambers of Magistrate Judge Barbara L. Major located at 940 Front Street, Suite 5140, San Diego, CA 92101. All discussions at the Mandatory Settlement Conference will be

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informal, off the record, privileged, and confidential. Counsel for any non-English speaking party is responsible for arranging for the

appearance of an interpreter at the conference. a. Personal Appearance of Parties Required: All parties,

adjusters for insured defendants, and other representatives of a party having full and complete authority to enter into a binding settlement, as well as the principal attorneys responsible for the litigation, must be present in person and legally and factually prepared to discuss settlement of the case. Counsel appearing without their clients

(whether or not counsel has been given settlement authority) will be cause for immediate imposition of sanctions and may also result in the immediate termination of the conference. Unless there are extraordinary circumstances, persons required to attend the conference pursuant to this Order shall not be excused from personal attendance. Requests for excuse from attendance for

extraordinary circumstances shall be made in writing at least three (3) court days prior to the conference. Failure to appear in person at the

Mandatory Settlement Conference will be grounds for sanctions. b. Full Settlement Authority Required: In addition to

counsel who will try the case, a party or party representative with full settlement authority1 must be present for the conference. In the case

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"Full settlement authority" means that the individuals at the settlement

conference must be authorized to explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have "unfettered Pitman v.

discretion and authority" to change the settlement position of a party. Brinker Int'l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003).

The purpose of requiring

a person with unlimited settlement authority to attend the conference contemplates that the person's view of the case may be altered during the face to face conference. Id.

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of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement is to have representatives present who can settle the case during the course of the conference without

consulting a superior.

Counsel for a government entity may be excused

from this requirement so long as the government attorney who attends the Mandatory Settlement Conference (1) has primary responsibility for handling the case, and (2) may negotiate settlement offers which the attorney is willing to recommend to the government official having ultimate settlement authority. c. Confidential Settlement Statements Required: No later

than January 26, 2009, the parties shall submit directly to Magistrate Judge Major's chambers confidential settlement statements no more than five (5) pages in length. filed or served on These confidential statements shall not be counsel. Each party's confidential

opposing

statement must include the following: (i) counterclaims A brief description of the case, the claims and/or and the applicable defenses or position

asserted,

regarding the asserted claims; (ii) A specific and current demand or offer for

settlement addressing all relief or remedies sought.

If a specific

demand or offer for settlement cannot be made at the time the brief is submitted, then the reasons therefore must be stated along with a

at 486.

A limited or a sum certain of authority is not adequate.See Nick v. Morgan's

Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).

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statement as to when the party will be in a position to state a demand or make an offer; and (iii) A brief description of any previous settlement

negotiations, mediation sessions, or mediation efforts. General statements that a party will "negotiate in good faith" is not a specific demand or offer contemplated by this Order. assumed that all parties will negotiate in good faith. d. Requests to Continue a Mandatory Settlement Conference: It is

Any request to continue the Mandatory Settlement Conference or request for relief from any of the provisions or requirements of this Order must be sought by a written ex parte application. The application must (1)

be supported by a declaration of counsel setting forth the reasons and justifications for the relief requested, (2) confirm compliance with Civil Local Rule 26.1, and (3) report the position of opposing counsel or any unrepresented parties subject to the Order. Absent extraordinary circumstances, requests for continuances will not be considered unless submitted in writing no less than seven (7) days prior to the scheduled conference. If the case is settled in its entirety before the scheduled date of the conference, counsel and any unrepresented parties must still appear in person, unless a written joint motion confirming the complete settlement of the case is submitted no less than twenty-four (24) hours before the scheduled conference. 20. The final pretrial conference is scheduled on the calendar of The trial date

the Honorable Lorenz on August 10, 2009 at 11:00 a.m.

will be assigned by Judge Lorenz at the pretrial conference. /// ///

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21.

The dates and times set forth herein will not be modified

except for good cause shown. 22. Plaintiff's(s') counsel shall serve a copy of this order on

all parties that enter this case hereafter. DATED: March 18, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE M. JAMES LORENZ U.S. DISTRICT JUDGE ALL COUNSEL

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 APPENDIX A APPROVED FORM OF JOINT CLAIM CONSTRUCTION WORKSHEET

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1. Claim language as it appears in the patent with terms and phrases to be construed in bold. 2. Claim language as it appears in the patent with terms and phrases to be construed in bold. 3. Claim language as it appears in the patent with terms and phrases to be construed in bold. PATENT CLAIM AGREED PROPOSED CONSTRUCTION PLAINTIFF'S PROPOSED CONSTRUCTION Plaintiff's proposed construction if parties disagree. DEFENDANT'S PROPOSED CONSTRUCTION Defendant's proposed construction if parties disagree. COURT'S CONSTRUCTION

JOINT CLAIM CONSTRUCTION WORKSHEET

Proposed construction if the parties agree.

Blank column for Court to enter its construction.

Proposed construction if the parties agree.

Plaintiff's proposed construction if parties disagree.

Defendant's proposed construction if parties disagree.

Blank column for Court to enter its construction.

Proposed construction if the parties agree.

Plaintiff's proposed construction if parties disagree.

Defendant's proposed construction if parties disagree.

Blank column for Court to enter its construction.

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