Uniloc USA, Inc. et al v. NATIONAL INSTRUMENTS CORP. et al

Filing 150

DOCKET CONTROL ORDER. Signed by Judge Leonard Davis on 06/08/11. cc:attys 6-09-11(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
SONY CORPORATION OF AMERICA,
ET AL.
Defendants.
UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
DISK DOCTORS LABS, INC., ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
NATIONAL INSTRUMENTS CORP., ET
AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
ENGRASP, INC., ET AL.
Defendants.

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CASE NO. 6:10-CV-373
PATENT CASE

CASE NO. 6:10-CV-471
PATENT CASE

CASE NO. 6:10-CV-472
PATENT CASE

CASE NO. 6:10-CV-591
PATENT CASE

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
BMC SOFTWARE, INC., ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
FOXIT CORPORATION, ET AL.
Defendants.

SYMANTEC CORPORATION, ET AL.
Plaintiffs,
vs.
UNILOC USA, INC., ET AL.
Defendants.

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CASE NO. 6:10-CV-636
PATENT CASE

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CASE NO. 6:10-CV-691
PATENT CASE

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CASE NO. 6:11-CV-33
PATENT CASE

DOCKET CONTROL ORDER
It is hereby ORDERED that the following schedule of deadlines is in effect until further
order of this Court:
Trial Date
November 13, 2012

9:00 a.m. JURY TRIAL as reached at the United States District Court,
211 W. Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler,
Texas.

Court designated date – not
flexible without good cause
- Motion Required

A.

ORDER REGARDING EXHIBITS, EXHIBIT LISTS AND WITNESS LISTS:
On the first day of trial, each party is required to have on hand the following:
(1)
One copy of their respective original exhibits. Each exhibit shall be properly labeled with the
following information: Identified as either Plaintiff’s or Defendant’s Exhibit, the Exhibit

(2)

Number and the Case Number. In addition, exhibits shall be placed in properly marked manilla
folders and contained in a box with handles.
Three (3) hard copies of their exhibit list and witness list. The Court’s preferred format for
Exhibit Lists is available on the Court’s website at www.txed.uscourts.gov under “Orders &
Forms.”

B.

During trial on a daily basis, each party shall tender to the Court a list of exhibits admitted for each day.
A description of the exhibits is not necessary, just a list containing the exhibit numbers. For example,
Plaintiff will submit a document entitled, “Plaintiff’s List of Exhibits Admitted on (the date).” Said daily
lists are to be tendered the following day. (If trial commences on Monday, Monday’s list will be due
Tuesday morning and so on until the conclusion of trial).

C.

At the conclusion of the evidentiary phase of trial, each party shall be responsible for pulling those
exhibits admitted at trial and tender those to the Courtroom Deputy, who will verify the exhibits and
tender them to the jury for their deliberations.

D.

At the conclusion of trial, all boxes of exhibits shall be returned to the respective parties and the parties are
instructed to remove these exhibits from the courtroom.

E.

Within five business days of the conclusion of trial, each party shall submit to the Court (to Chambers) the
following:
(1)
A Final Exhibit List of Exhibits Admitted During Trial, and in addition provide the Court a disk
containing this document in WordPerfect or Word format.
(2)
A disk or disks containing their respective admitted trial exhibits in PDF format, with the
exception of sealed exhibits. If the Court ordered any exhibits sealed during trial, the Sealed
Exhibits shall be copied on a separate disk. If tangible or over-sized exhibits were admitted,
such exhibits shall be substituted with a photograph to be converted to a PDF file and shall be
included in the Court’s disk of admitted exhibits.
(3)
A disk or disks containing the transcripts of Video Depositions played during trial, along with a
copy of the actual video deposition.

F.

After verification of final exhibit lists, the Courtroom Deputy shall file and docket the lists, and the disk or
disks containing the exhibits in PDF format shall be stored in the Clerk’s Office.

November 5, 2012
Court designated date – not
flexible without good cause
- Motion Required

October 18, 2012
Court designated date –
not flexible without good
cause - Motion Required

9:00 a.m. JURY SELECTION at the United States District Court, 211
W. Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler,
Texas.

9:00 a.m. PRETRIAL CONFERENCE at the United States District
Court, 211 W. Ferguson, 3rd Floor, Courtroom of Judge Leonard
Davis, Tyler, Texas.
All pending motions will be heard.
Lead Attorney must attend the pretrial conference.

October 16, 2012*

Parties to file estimates of the amount of time they request at jury selection
and trial for (1) voir dire, (2) opening statements, (3) direct and cross
examinations, and (4) closing arguments.

October 11, 2012*

Responses to Motions in Limine due.

October 8, 2012*

Motions in Limine due. The parties are directed to confer and advise the
Court on or before 3:00 o’clock p.m. the day before the pre-trial conference

which paragraphs are agreed to and those that need to be addressed at the
pre-trial conference.

October 8, 2012*

Pretrial Objections due.

September 28, 2012*

Objections to Rebuttal Deposition Testimony due.

September 23, 2012*

Rebuttal Designations and Objections to Deposition Testimony due.
For rebuttal designations, cross examination line and page numbers to be
included. In video depositions, each party is responsible for preparation
of the final edited video in accordance with their parties’ designations and
the Court’s rulings on objections.

September 13, 2012*

Pretrial Disclosures due.
Video and Stenographic Deposition Designation due. Each party who
proposes to offer deposition testimony shall file a disclosure identifying the
line and page numbers to be offered.

August 24, 2012*

Joint Pretrial Order, Joint Proposed Jury Instructions with citation to
authority and Form of the Verdict for jury trials due. Proposed
Findings of Fact and Conclusions of Law with citation to authority for
issues tried to the bench.
Notice of Request for Daily Transcript or Real Time Reporting of Court
Proceedings due. If a daily transcript or real time reporting of court
proceedings is requested for trial or hearings, the party or parties making
said request shall file a notice with the Court and email the Court.

August 14, 2012*

Second mediation to be completed.

June 17, 2012*

Response to Dispositive Motions (including Daubert motions) due.
Responses to dispositive motions filed prior to the dispositive motion
deadline, including Daubert motions, shall be due in accordance with Local
Rule CV-56 and Local Rule CV-7. Motions to extend page limits will only
be granted in exceptional circumstances.

June 2, 2012*

Dispositive Motions due from all parties and any other motions that
may require a hearing (including Daubert motions) due. Motions shall
comply with Local Rule CV-56 and Local Rule CV-7. Motions to extend
page limits will only be granted in exceptional circumstances.

May 30, 2012*

Parties to Identify Rebuttal Trial Witnesses.

May 19, 2012*

Parties to Identify Trial Witnesses; Amend Pleadings (after Markman
Hearing). It is not necessary to file a Motion for Leave to Amend before the
deadline to amend pleadings. It is necessary to file a Motion for Leave to
Amend after the deadline. However, except as provided in Patent Rule 3-6,
if the amendment would effect infringement contentions or invalidity
contentions, a motion must be made pursuant to Patent Rule 3-6 irrespective
of whether the amendment is made prior to this deadline.

May 5, 2012*

Discovery Deadline.

April 5, 2012*

Parties designate rebuttal expert witnesses (non-construction issues),
Rebuttal expert witness reports due. Refer to Local Rules for required
information.

April 3, 2012*

Deadline to File Letter Briefs for Summary Judgment Motions and
Daubert Motions. See the Court’s website for further information.

March 26, 2012*

Parties with burden of proof designate expert witnesses (non-construction
issues). Expert witness reports due. Refer to Local Rules for required
information.

February 25, 2012*

Comply with P.R.3-7 - Furnishing documents and privilege logs pertaining
to willful infringement. Privilege Logs to be exchanged by parties (or a
letter to the Court stating that there are no disputes as to claims of privileged
documents).

Within 15 days of the
Court’s Memorandum
Opinion setting forth
the claim construction

The parties shall meet and confer and jointly file in each case a notice that the
cases are ready for a management conference. The notice shall include a list
of any pending motions and contain specific, viable suggestions for efficient
trial management.

Court designated date

October 19, 2011
Court designated date – not
flexible without good cause
– Motion Required

October 12, 2011

ONE Consolidated Markman hearing and hearing on any Motion for
Summary Judgment of Indefiniteness at 9:00 a.m. at the United States
District Court, 211 West Ferguson, 3rd Floor, Courtroom of Judge
Leonard Davis, Tyler, Texas.
P.R. 4-5(d) Chart due. Parties shall jointly submit a claim construction
chart on computer disk in WordPerfect format or in such other format as the
Court may direct in accordance with P.R. 4-5(d).
Reply to Motion for Summary Judgment of Indefiniteness due. The
filing party is to provide the Court with 2 binders containing their brief and
exhibits appropriately tabbed. If a technical advisor has been appointed the
moving party is to provide their brief on disk or CD along with a hard copy,
tabbed and bound in notebook format with exhibits to the advisor.
Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e).
Pages shall be counted against the party’s total page limit. See Local Rules
CV-7(a)(3). Motions to extend page limits will only be granted in
exceptional circumstances.

October 10, 2011

Respond to Amended Pleadings.

October 7, 2011

Tutorials due. Deadline for parties, if they desire, to provide Court with
tutorials concerning technology involved in patent. If a technical advisor
has been appointed, each party that provides a tutorial shall provide a copy to
the advisor.

October 7, 2011

Parties to file a notice with the Court stating the estimated amount of time
requested for the Markman Hearing. The Court will notify the parties if it is
unable to accommodate this request.
Comply with P.R. 4-5(c) - Reply brief and supporting evidence due re
response to claim construction. The filing party is to provide the Court with
2 binders containing their reply brief and exhibits appropriately tabbed. If a
technical advisor has been appointed the moving party is to provide their
brief on disk or CD along with a hard copy, tabbed and bound in notebook
format with exhibits to the advisor.
Response to Motion for Summary Judgment of Indefiniteness due. The
filing party is to provide the Court with 2 binders containing their brief and
exhibits appropriately tabbed. If a technical advisor has been appointed the
moving party is to provide their brief on disk or CD along with a hard copy,
tabbed and bound in notebook format with exhibits to the advisor.

October 1, 2011

September 26, 2011

Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e).
Pages shall be counted against the party’s total page limit. See Local Rules
CV-7(a)(3). Motions to extend page limits will only be granted in
exceptional circumstances.
Amended Pleadings (pre-claim construction) due from all parties.
Defendant shall join additional parties, assert any counterclaims and add any
inequitable conduct allegations to pleadings. It is not necessary to file a
Motion for Leave to Amend before the deadline to amend pleadings. It is
necessary to file a Motion for Leave to Amend after the deadline. However,
if the amendment would affect infringement contentions or invalidity
contentions, a motion must be made pursuant to Patent Rule 3-6 irrespective
of whether the amendment is made prior to this deadline.
Comply with P.R. 4-5(b) - Responsive brief and supporting evidence due to
party claiming patent infringement. The filing party is to provide the Court
with 2 binders containing their Markman brief and exhibits appropriately
tabbed. If a technical advisor has been appointed the moving party is to
provide their Markman brief on disk or CD along with a hard copy, tabbed
and bound in notebook format with exhibits to the advisor.
Motion for Summary Judgment of Indefiniteness due. The moving
party is to provide the Court with 2 binders containing their brief and
exhibits appropriately tabbed. If a technical advisor has been appointed the
moving party is to provide their brief on disk or CD along with a hard copy,
tabbed and bound in notebook format with exhibits to the advisor.
Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e).
Pages shall be counted against the party’s total page limit. See Local Rules
CV-7(a)(3). Motions to extend page limits will only be granted in
exceptional circumstances.

September 12, 2011

Comply with P.R. 4-5(a) - The party claiming patent infringement shall
serve and file an opening brief and any evidence supporting its claim
construction. The filing party is to provide the Court with 2 binders
containing their Markman brief and exhibits appropriately tabbed. If a
technical advisor has been appointed the moving party is to provide their
Markman brief on disk or CD along with a hard copy, tabbed and bound in
notebook format with exhibits to the advisor.
Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e).
Motions to extend page limits will only be granted in exceptional
circumstances.

September 7, 2011

Deadline to File Letter Brief for Motion for Summary Judgment of
Indefiniteness. See the Court’s website for further information.

August 29, 2011

Comply with P.R. 4-3 - Filing of Joint Claim Construction and Prehearing
Statement.
The Court prefers to minimize the time spent on previously construed terms.
The parties shall meet and confer regarding preserving the parties’
arguments for appeal by stipulation rather than resubmitting previously
construed terms for construction. The parties must seek leave and show
good cause to submit previously construed terms for construction. The
parties shall coordinate to file one Joint Claim Construction and Prehearing
Statement applicable to all the Uniloc cases.

August 22, 2011

Comply with P.R. 4-2 - Exchange of Preliminary Claim Constructions and
Extrinsic Evidence.

August 15, 2011

Comply with P.R. 3-3 and 3-4- Invalidity Contentions due. Thereafter,
except as provided in Patent Rule 3-6(a), it is necessary to obtain leave of
Court to add and/or amend invalidity contentions, pursuant to Patent Rule
3-6(b).

Court designated date

Exchange of Additional Disclosures according to the Court’s Discovery
Order.

August 15, 2011

Comply with P.R. 4-1 - Exchange Proposed Terms and Claim Elements for
Construction.

August 10, 2011

Proposed Technical Advisors due. Parties to provide name, address, phone
number, and curriculum vitae for up to three agreed technical advisors and
information regarding the nominees’ availability for Markman hearing or a
statement that they could not reach an agreement as to any potential technical
advisor. If the parties cannot agree on a technical advisor, they shall not
submit any proposed technical advisors to the Court.

August 1, 2011

Exchange of Initial Disclosures according to the Court’s Discovery Order.

Court designated date

July 30, 2011

First mediation to be completed. The Court appoints Robert W. Faulkner as

Court designated date

June 30, 2011
Court designated date

the mediator. Mediation shall be conducted in accordance with the
Court-Annexed Mediation Plan. See Appendix H to Local Rules, available
on the Court’s website at www.txed.uscourts.gov.
Defendants that have disclosed source code may request leave to extend this
deadline 14 days. No further extensions shall be granted.
Deadline for Voluntary Early Disclosure of Source Code. Defendants may
choose to disclose their source code related to the operation of the accused
instrumentality identified by Uniloc’s P.R. 3-1(c) chart. Should a
Defendant disclose its source code, Uniloc shall amend its P.R. 3-1(c) chart
to incorporate the provided source code within 30 days. After this
amendment, or if a Defendant does not participate in the early disclosure of
its source code, Uniloc must obtain leave of Court to add and/or further
amend its infringement contentions, pursuant to P.R. 3-6.
If necessary, Uniloc may request leave to extend this deadline depending on the source code
disclosure upon showing good cause (e.g., the number of Defendants choosing early
disclosure of source code, the volume of source code to review, whether the disclosed source
code is printed or produced on a stand-alone a computers with limited access, the number of
corresponding cites to incorporate in to the P.R. 3-1(c) chart).

June 24, 2011
Court designated date

June 3, 2011
Court designated date

Defendants’ Production of Accused Product Sales Data—Defendants shall
provide limited sales disclosures regarding the accused products (e.g.,
quantity of accused devices sold and revenue from those sales).
Comply with P.R. 3-1 and P.R. 3-2 - Disclosure of Asserted Claims and
Infringement Contentions due. Thereafter, except as provided in Patent
Rule 3-6(a), it is necessary to obtain leave of Court to add and/or amend
infringement contentions, pursuant to Patent Rule 3-6(b).
Plaintiff shall produce all prior licenses related to the patent-in-suit.
Plaintiff shall join additional parties. It is not necessary to file a motion to
join additional parties prior to this date. Thereafter, it is necessary to obtain
leave of Court to join additional parties.
Plaintiff shall add new patents and/or claims for patents-in-suit. It is not
necessary to file a motion to add additional patents or claims prior to this
date. Thereafter, it is necessary to obtain leave of Court to add patents or
claims.

May 31, 2011

Docket Control and Discovery Orders due

Court designated date

To be determine at
Post-Markman
management
Conference

EXPECTED LENGTH OF TRIAL

*As it is premature to address the specific logistics of trial, dates following the post-Markman
management conference are simply placeholders and will be modified after the parties’ post-Markman

management conference.
In the event that any of these dates fall on a weekend or Court holiday, the deadline is modified to
be the next Court business day.
The parties are directed to Local Rule CV-7(d), which provides in part that “[i]n the event a party
fails to oppose a motion in the manner prescribed herein the Court will assume that the party has no
opposition.” Local Rule CV-7(e) provides that a party opposing a motion has 15 days in which to serve
and file supporting documents and briefs after which the Court will consider the submitted motion for
decision.
OTHER LIMITATIONS
(a)

(b)

All depositions to be read into evidence as part of the parties’ case-in-chief shall be
EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony; ONLY
those portions which are relevant to the issues in controversy shall be read into evidence.
The following excuses will not warrant a continuance nor justify a failure to comply with
the discovery deadline:
(i)
(ii)

(iii)

The fact that there are motions for summary judgment or motions to dismiss
pending;
The fact that one or more of the attorneys is set for trial in another court on the
same day, unless the other setting was made prior to the date of this order or was
made as a special provision for the parties in the other case;
The failure to complete discovery prior to trial, unless the parties can demonstrate
that it was impossible to complete discovery despite their good faith effort to do so.

So ORDERED and SIGNED this 8th day of June, 2011.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE