WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 95

Submission of Proposed Agreed Docket Control/Scheduling order by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Ericsson Mobile Communications (USA) Inc., Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, WI-LAN Inc.. (Attachments: # 1 Text of Proposed Order)(Weaver, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC.;
TELEFONAKTIEBOLAGET LM
ERICSSON; ERICSSON INC.; SONY
ERICSSON MOBILE COMMUNICATIONS
AB; SONY ERICSSON MOBILE
COMMUNICATIONS (USA) INC.; HTC
CORPORATION; HTC AMERICA, INC.;
EXEDEA INC.; LG ELECTRONICS, INC.;
LG ELECTRONICS MOBILECOMM U.S.A.,
INC.; LG ELECTRONICS U.S.A., INC.
Defendants.

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Civil Action No. 6:10-cv-521-LED
JURY TRIAL DEMANDED

DOCKET CONTROL ORDER
It is hereby ORDERED that the following schedule of deadlines is in effect until further
order of this Court:

April 8, 2013
Court designated date – not
flexible without good cause
- Motion Required

April 8, 2013

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.
EXHIBITS & EXHIBIT LISTS: Each party shall provide the Court
with one set of exhibits and three copies of the exhibit list. The Court’s
preferred format for Exhibit Lists is available on the Court’s website at
www.txed.uscourts.gov under “Orders & Forms.”
The parties are further requested to have all exhibits labeled with
the following information on each label: Designation of Plaintiff’s or
Defendant’s Exhibit Number and Case Number.
At the conclusion of the evidentiary phase of trial, each party shall
be responsible for pulling those exhibits admitted at trial to be
submitted to the jury. In addition, each party shall submit to the Court

a Final Exhibit List of all of their exhibits admitted during trial.
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.
Within two business days of the conclusion of trial, each party
shall submit to the Court the following:
(1) A disk or disks containing all admitted trial exhibits in PDF
format. If tangible 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. If
the
Court
ordered any exhibits sealed during trial, the Sealed Exhibits shall be
copied on a separate disk.
(2) A disk or disks containing the transcripts of Video
Depositions played during trial, along with a copy of the actual video
deposition.
After verification of exhibit lists by the Clerk, the lists shall be
filed by the Clerk, and the disk or disks containing the exhibits in PDF
format shall be stored in the Clerk’s Office, Tyler Division.

April 1, 2013
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
Court designated date – not
flexible without good cause Leonard Davis, Tyler, Texas.

March 21, 2013
- Motion Required

All pending motions will be heard.
Lead trial counsel must attend the pretrial conference.

March 18, 2013

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.

March 15, 2013

Responses to Motions in Limine due.

March 11, 2013

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.

March 11, 2013

Pretrial Objections due.

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March 1, 2013

Objections to Rebuttal Deposition Testimony due.

February 25, 2013

Rebuttal Designations and Objections to Deposition Testimony due.
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.

February 13, 2013

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.

January 25, 2013

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 Reporter, Shea Sloan, at [e-mail].

December 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.

November 16, 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.

November 13, 2012

Parties to Identify Rebuttal Trial Witnesses.

November 2, 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
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made pursuant to Patent Rule 3-6 irrespective of whether the
amendment is made prior to this deadline.
28 Days After Date for
Rebuttal Expert
Witness Reports or
October 19, 2012,
whichever is later

Discovery Deadline.

50 Days After Court
Issues Claim
Construction Order, or
September 21, 2012,
whichever is later

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

28 Days After Court
Issues Claim
Construction Order, or
August 24, 2012,
whichever is later

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

July 27, 2012

Comply with P.R.3-7 - Furnishing documents and privilege logs
pertaining to willful infringement.

April 26, 2012

Markman hearing and hearing on any Motion for Summary
Judgment of Indefiniteness at 9:30 a.m. at the United States
District Court, 211 West Ferguson, 3rd Floor, Courtroom of Judge
Leonard Davis, Tyler, Texas.

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

April 19, 2012

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). Motions to extend page limits will only be granted in
exceptional circumstances.

April 13, 2012

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
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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.
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.
March 30, 2012

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). Motions to extend page limits will only be granted in
exceptional circumstances.

March 16, 2012

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.

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March 14, 2012

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

March 7, 2012

Discovery Deadline - Claim Construction Issues.

February 23, 2012

Respond to Amended Pleadings.

February 16, 2012

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.

February 9, 2012

Amended Pleadings (pre-claim construction) due from all parties. 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 3-7 irrespective of whether the
amendment is made prior to this deadline.

February 6, 2012

Comply with P.R. 4-3 - Filing of Joint Claim Construction and
Prehearing Statement.

January 6, 2012

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

November 4, 2011

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

September 14, 2011

Comply with P.R. 3-4(a) – Each defendant must produce or make
available for inspection and copying source code, specifications,
schematics, flow charts, artwork, formulas, or other documentation
sufficient to show the operation of any aspects or elements of an
Accused Instrumentality identified by Wi-LAN in its P. R. 3-1
disclosures.

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September 2, 2011

Comply with P.R. 3-3 and 3-4(b)- Invalidity Contentions and
associated prior art due, pursuant to and as required by P.R. 3-3 and 34(b). Thereafter, it is necessary to obtain leave of Court to add and/or
amend invalidity contentions, pursuant to Patent Rule 3-6.
Defendants 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.
Defendants shall assert any counterclaims. After this deadline, leave
of Court must be obtained to assert any counterclaims.
Add any inequitable conduct allegations to pleadings. It is not
necessary to file a motion for leave to add inequitable conduct
allegations to pleadings prior to this date. Thereafter, it is necessary to
obtain leave of Court to add inequitable conduct allegations to
pleadings.

June 14, 2011

Comply with P.R. 3-1 and P.R. 3-2 - Disclosure of Asserted Claims
and Infringement Contentions due. Thereafter, it is necessary to obtain
leave of Court to add and/or amend infringement contentions, pursuant
to Patent Rule 3-6.
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.

March 30, 2012

Mediation to be completed.
The Honorable Robert Faulkner of JAMS, located at 8401 N. Central
Expressway, Suite 610, Dallas, Texas 75225, is appointed as mediator
in this cause with respect to the disputes between Wi-LAN and the
Ericsson Defendants, and with respect to the disputes between WiLAN and the Sony Ericsson Defendants. Judge Faulkner’s office
phone number is [phone].
Mr. Jim Knowles, One American Center, 909 ESE Loop 323, Suite
410, Tyler, Texas 75701, is appointed as mediator in this cause with
respect to the disputes between Wi-LAN and Alcatel-Lucent, and with
respect to the disputes between Wi-LAN and the HTC Defendants.
Mr. Knowles’ office phone number is 903-534-3800.
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.

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6-8 days

EXPECTED LENGTH OF TRIAL

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)

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.

(b)

The following excuses will not warrant a continuance nor justify a failure to
comply with the discovery deadline:
(i)

The fact that there are motions for summary judgment or motions to
dismiss pending;

(ii)

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;

(iii)

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.
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Dated: June 24, 2011

Respectfully submitted,

/s/ Gregory S. Arovas (with permission)
Gregory S. Arovas (NY Bar 2553782)
Robert A. Appleby (NY Bar 2681971)
Akshay S. Deoras (NY Bar 4701082)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

By:

/s/ David B. Weaver
David B. Weaver (TX Bar 00798576)
Lead Attorney
David D. Hornberger (TX Bar 24055686)
Juliet M. Dirba (TX Bar 24051063)
John A. Fedock (TX Bar 24059737)
Jeffrey T. Han (TX Bar 24069870)
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Defendant Alcatel-Lucent
USA Inc.
/s/ Martin R. Bader (with permission)
Stephen S. Korniczky (CA Bar 135532)
Martin R. Bader (CA Bar 222865)
Daniel N. Yannuzzi (CA Bar 196612)
Inge Larish (TX Bar 00796924)

Charles P. Ebertin (CA Bar 161374)
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]
Fax: [phone]
[e-mail]

SHEPPARD MULLIN RICHTER & HAMPTON LLP

12275 El Camino Real, Suite 200
San Diego, CA 92130
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiff, Wi-LAN Inc.
/s/Bruce S. Sostek (with permission)
Bruce S. Sostek (TX Bar 18855700)

Attorneys for Defendants HTC
Corporation, HTC America Inc., and
Exeda Inc.

THOMPSON KNIGHT LLP

1722 Routh Street, Suite 1500
Dallas, TX 75201
Tel: [phone]
Fax: [phone]
[e-mail]
Lead Counsel for Defendants Ericsson
Inc., Telefonaktiebolaget LM Ericsson,
Sony Ericsson Mobile Communications
(USA) Inc.

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). All other counsel
of record not deemed to have consented to electronic service were served with a true and correct
copy of the foregoing by email and/or fax, on this the 24th day of June 2011.

/s/ David B. Weaver
David B. Weaver

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