Waco Patent Litigation Updates

Today, Judge Albright posted a revised Order Governing Proceedings – Patent Case: OGP Version 3.1.  This is an update from Version 3.0, posted July 22.  The bulk of the revisions apply to the Markman hearing and General Issues sections, as well as changes to the Default Schedule.  Here are the key things to note:

Tech Tutorials and Conduct of Markman:

The OGP makes it clear that technology tutorials are optional. The revised language seems to indicate that, if utilized, electronic submission is preferred to live tutorials. Newly-added language encourages parties to only request a live tutorial if it “would be of particular benefit to the Court”.  A live tutorial would need to be requested far enough in advance that the tutorial can be scheduled at least a week before the Markman.

The guidance regarding the order of argument at the hearing has been modified as well. The general rule now is that “the party opposing the Court’s preliminary construction shall go first.  If both parties are unwilling to accept the Court’s preliminary construction, the Plaintiff shall typically go first."

General Issues Notes:

The General Issues Notes have been re-ordered and two additions have been made:

1. After the trial date is set, the Court will not move the date except in extreme situations.  If a party believes those circumstances exist, the parties should contact the Court to request a telephonic hearing.
2. Paper copies of briefing for Markman, MSJ, and Daubert motions must be delivered at least a week before the hearing.  Additionally, each party must provide an electronic copy of the briefs and exhibits via Box or USB drive (this was previously stated within individual entries in the Default Schedule; the Schedule now refers to this General Issues Note when applicable).  For Markman briefs, the parties should include one paper copy of all patents-in-suit and the Joint Claim Construction Statement.  If the Court appoints a technical adviser, each party shall deliver the same documents to the TA.

Default Schedule Modifications:

Claim Construction Expert Disclosures:

• The previous expert witness disclosure deadline for claim construction and indefiniteness (12 weeks after CMC) has been modified to pertain only to experts relied upon in a party’s opening brief and a new deadline for rebuttal experts in responsive briefs has been added four weeks later (16 weeks after CMC).
• Additionally, the disclosure requirement is now limited to identification of the scope of the topics for the expert’s expected testimony.  This deletes the previous requirement to provide a summary of the expert’s expected testimony, opinions, and basis.

Here are redline changes to the affected portions of the Schedule: