Akamai Technologies, Inc. v. Limelight Networks, Inc.

Filing 30

Judge George A. OToole, Jr: ORDER entered. (Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10253-GAO
AKAMAI TECHNOLOGIES, INC.,
Plaintiff and Counterclaim Defendant,
v.
LIMELIGHT NETWORKS, INC.,
Defendant and Counterclaim Plaintiff.

ORDER
June 24, 2016
O’TOOLE, D.J.
Following the initial scheduling conference, pursuant to Rule 16(b) of the Federal Rules of
Civil Procedure and Local Rules 16.1(F) and 16.6(B), the Court adopts the following schedule for
both parties’ patent infringement claims. In this Order, the word “patentee” refers to the relevant
patent holder for each particular infringement claim, and the term “accused infringer” refers to the
relevant opposing party for each particular infringement claim.
It is hereby ORDERED that:
Initial disclosures, if not already exchanged, shall be served on either party by July 1, 2016.
All amendments to pleadings and joinder of additional parties shall be filed and served by
December 2, 2016.
I.

Preliminary Disclosures
A.

Preliminary Infringement Disclosure

No later than September 23, 2016, the patentee shall serve and file preliminary disclosure
of infringement claims. The patentee shall specify which patent claims are alleged to be infringed
and identify the accused product(s) or method(s) that allegedly infringe those claims. The patentee

shall also specify whether the alleged infringement is literal or falls under the doctrine of
equivalents. If the patentee has not already done so, the patentee shall produce all documents
supporting its contentions and/or identify any such supporting documents produced by the accused
infringer. Such disclosures may be amended and supplemented up to thirty (30) days before the
date of the Markman Hearing.
B.

Preliminary Invalidity and Non-Infringement Disclosures

No later than November 4, 2016, the accused infringer shall serve and file preliminary
invalidity and non-infringement contentions. The accused infringer shall identify prior art that
anticipates or renders obvious the identified patent claims in question and, for each such prior art
reference, shall specify whether it anticipates or is relevant to the obviousness inquiry. If
applicable, the accused infringer shall also specify any other grounds for invalidity, such as
indefiniteness, best mode, enablement, written description, or unpatentability. If the accused
infringer has not already done so, the accused infringer shall produce documents relevant to the
invalidity defenses and/or identify any such supporting documents produced by the patentee.
Further, if the accused infringer has not already done so, the accused infringer shall produce
documents sufficient to show operation of the accused product(s) or method(s) that the patentee
identified in its preliminary infringement disclosures. Such disclosures may be amended and
supplemented up to thirty (30) days before the date of the Markman Hearing.
II.

Claim Construction Proceedings
A.

Exchange List of Claim Terms

No later than January 27, 2017, the parties shall simultaneously exchange a list of claim
terms to be construed and proposed constructions. The parties shall also exchange intrinsic
evidence in support of their respective claim constructions on that date.

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B.

Preliminary Claim Construction Briefs

No later than February 17, 2017, the parties shall simultaneously exchange and file
preliminary claim construction briefs. Each brief shall contain a list of terms construed, the party’s
proposed construction of each term, and evidence and argument supporting each construction.
Absent leave of Court, preliminary claim construction briefs shall be limited to 25 pages, double
spaced, of at least 12-point Times New Roman font or equivalent, including footnotes.
C.

Reply Claim Construction Briefs

No later than March 10, 2017, the parties shall simultaneously exchange reply briefs.
Absent leave of Court, reply briefs shall be limited to 15 pages, double spaced, of at least 12-point
Times New Roman font or equivalent, including footnotes.
D.

Joint Claim Construction Statement

No later than March 24, 2017, the parties shall finalize the list of disputed terms for the
Court to construe. The parties shall prepare and file a joint claim construction and prehearing
statement (hereafter the “joint statement”) that identifies both agreed and disputed terms.
(i) The joint statement shall note the anticipated length of time necessary for the claim
construction hearing and whether any party proposes to call witnesses, including a statement that
such extrinsic evidence does not conflict with intrinsic evidence.
(ii) The joint statement shall also indicate whether the parties will present tutorials on the
relevant technology, the form of such tutorials, and the timing for such tutorials in relation to the
claim construction hearing.
(iii) The joint statement shall include a proposed order in which parties will present their
arguments at the claim construction hearing, which may be term-by-term or party-by-party,
depending on the issues in the case.

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(iv) The joint statement shall limit the number of claim terms to be construed and shall
prioritize the disputed terms in order of importance. The Court suggests that, ordinarily, no more
than ten (10) terms per patent be identified as requiring construction.
(v) The joint statement shall include a joint claim construction chart, noting each party’s
proposed construction of each term and supporting evidence. The parties my use a form similar to
the one shown below.

TERM

III.

PATENTEE’S
CONSTRUCTION

ACCUSED
INFRINGER’S
CONSTRUCTION

COURT’S
CONSTRUCTION

The Claim Construction Hearing (a.k.a. “Markman Hearing”)
The Markman Hearing is scheduled for Tuesday, April 25, 2017 at 10:00 a.m.

IV.

Other Scheduled Dates
The Court will add other deadlines to the schedule, such as for amendments to

infringement/non-infringement disclosures after the Markman decision, for the close of fact
discovery, and for expert disclosures and discovery in a separate order when appropriate.
V.

Summary
The following chart summarizes the dates scheduled in this Order.

Event
Initial Disclosures
Infringement Disclosures
Invalidity and Non-Infringement
Disclosures
Amendments to Pleadings &
Joinder of Additional Parties

Date
July 1, 2016
September 23, 2016
November 4, 2016
December 2, 2016

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Exchange List of Claim Terms to
be Construed and Proposed
Constructions
Simultaneous Filing of Claim
Construction Briefs
Simultaneous Filing of Reply
Claim Construction Briefs
Filing of Joint Claim Construction
Statement
Markman Hearing

January 27, 2017

February 17, 2017
March 10, 2017
March 24, 2017
April 25, 2017 at 10:00 a.m.

It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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