1037-00004 · Solstice Biomedical Devices Ltd · Pleadings & Court Filings

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

[PROPOSED] SCHEDULING ORDER

Filed by Calderwood & Harkness LLP, Counsel for Defendant Solstice Biomedical, Inc. Submitted in advance of the Initial Scheduling Conference set for July 2, 2024 Date of Draft: June 28, 2024

PREAMBLE

WHEREAS, Plaintiff Apex Surgical Innovations, Inc. ("Plaintiff" or "Apex") filed its Complaint in this action on May 9, 2024 (D.I. 1), alleging infringement of United States Patent Nos. 9,814,237 ("the '237 Patent"), 10,271,884 ("the '884 Patent"), and 10,932,105 ("the '105 Patent") (collectively, the "Asserted Patents") by Defendant Solstice Biomedical, Inc. ("Defendant" or "Solstice");

WHEREAS, Defendant Solstice Biomedical, Inc. was served with the Summons and Complaint on May 23, 2024, and thereafter timely filed its Answer, Affirmative Defenses, and Counterclaims on June 14, 2024 (D.I. 8), asserting counterclaims for declaratory judgment of non-infringement, invalidity, and inequitable conduct with respect to each of the Asserted Patents;

WHEREAS, the parties, through their respective counsel of record — Marcus Delgado of Calderwood & Harkness LLP, counsel for Defendant, and Victoria Stanton of Hargrove, Tate & Bennington LLP, counsel for Plaintiff — have conferred in good faith pursuant to Federal Rule of Civil Procedure 26(f), as required by this Court's Standing Order and the Federal Rules, to discuss the nature and basis of their claims and defenses, the possibilities for promptly settling or resolving the case, arrangements for making the disclosures required by Rule 26(a)(1), any issues about preserving discoverable information, and to develop a proposed discovery plan;

WHEREAS, the parties jointly submit this Proposed Scheduling Order for the Court's consideration in connection with the Initial Scheduling Conference currently set for July 2, 2024, at 10:00 a.m. before Chief Judge Richard G. Andrews; and

WHEREAS, this Court has the authority to enter a scheduling order governing the management of this case pursuant to Federal Rule of Civil Procedure 16(b), and the parties respectfully request that the Court adopt the schedule set forth herein, which the parties believe will promote the just, speedy, and inexpensive determination of this action;

NOW, THEREFORE, upon consideration of the foregoing, and for good cause shown, IT IS HEREBY ORDERED as follows:

SECTION 1: NATURE OF THE ACTION

1. This is a patent infringement action arising under the patent laws of the United States, 35 U.S.C. § 1 et seq. The action involves three United States utility patents directed to locking-seal mechanisms and blade-deployment assemblies for use in minimally invasive surgical instruments, including, without limitation, trocar assemblies used in laparoscopic and other endoscopic surgical procedures.

2. The Asserted Patents are identified as follows:

(a) U.S. Patent No. 9,814,237 ("the '237 Patent"), entitled "Locking Seal Assembly for Minimally Invasive Surgical Trocar," issued on November 14, 2017, with an expiration date of June 22, 2035;

(b) U.S. Patent No. 10,271,884 ("the '884 Patent"), entitled "Blade-Deployment Mechanism with Integrated Safety Interlock for Trocar Systems," issued on April 30, 2019, with an expiration date of September 15, 2036; and

(c) U.S. Patent No. 10,932,105 ("the '105 Patent"), entitled "Multi-Position Sealing Apparatus for Variable-Diameter Trocar Ports," issued on March 2, 2021, with an expiration date of January 10, 2038.

3. The accused products in this action are the PrecisionEdge™ line of trocar assemblies designed, manufactured, offered for sale, sold, used, and/or imported into the United States by Defendant Solstice Biomedical, Inc., including specifically:

(a) The PrecisionEdge™ PE-5000 Series (5 mm trocar assembly);

(b) The PrecisionEdge™ PE-12000 Series (12 mm trocar assembly); and

(collectively, the "Accused Products").

4. In its Answer and Counterclaims, Defendant has asserted counterclaims for: (i) a declaratory judgment of non-infringement of each of the Asserted Patents; (ii) a declaratory judgment of invalidity of each of the Asserted Patents; and (iii) inequitable conduct during the prosecution of each of the Asserted Patents before the United States Patent and Trademark Office.

SECTION 2: PARTIES AND COUNSEL

2.1 Plaintiff.

5. Plaintiff Apex Surgical Innovations, Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 1220 North Market Street, Suite 550, Wilmington, Delaware 19801. Plaintiff is the owner by assignment of all right, title, and interest in and to each of the Asserted Patents, including the right to sue for and recover damages for past, present, and future infringement thereof.

6. Plaintiff is represented in this action by the following counsel of record:

Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 555-4100 Facsimile: (302) 555-4101

Lead Counsel: Victoria Stanton, Esquire (vstanton@htblaw.com) Associate Counsel: Derek Loomis, Esquire (dloomis@htblaw.com)

2.2 Defendant.

7. Defendant Solstice Biomedical, Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal offices located at 3800 Concord Pike, Suite 410, Wilmington, Delaware 19803. Defendant is a United States operating subsidiary of Solstice Biomedical Devices Ltd., an Irish private limited company organized under the laws of Ireland with its registered office in Dublin, Ireland. Defendant designs, manufactures, markets, sells, offers for sale, and imports into the United States the Accused Products identified in Section 1 above.

8. Defendant is represented in this action by the following counsel of record:

Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800 Facsimile: (302) 555-7801

Responsible Partner: Marcus Delgado, Esquire (mdelgado@calderwoodharkness.com) Lead Associate: Christy Bauer, Esquire (cbauer@calderwoodharkness.com) Working Associate: Peter Vassiliev, Esquire (pvassiliev@calderwoodharkness.com)

SECTION 3: JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a), as this action arises under the patent laws of the United States, 35 U.S.C. § 1 et seq.

10. This Court has personal jurisdiction over Defendant Solstice Biomedical, Inc. by virtue of Defendant's incorporation under the laws of the State of Delaware. Defendant does not contest personal jurisdiction in this forum.

11. Venue is proper in the District of Delaware pursuant to 28 U.S.C. §§ 1391(b) and 1400(b), as Defendant is incorporated in the State of Delaware and is therefore deemed to reside in this judicial district for purposes of the patent venue statute.

SECTION 4: DISCOVERY PLAN AND SCHEDULE

4.1 Joint discovery Plan

12. The parties shall meet and confer and thereafter file a Joint discovery Plan with the Court on or before July 15, 2024. The Joint discovery Plan shall address, at a minimum, the following subjects:

(a) Proposed protocols for the identification, preservation, collection, review, and production of electronically stored information ("ESI"), including the format of production, the use of search terms or technology-assisted review, and any limitations on the scope of ESI discovery;

(b) The format in which documents and ESI shall be produced, including native-format production, image-based production, or a combination thereof;

(c) A proposed stipulated protective order governing the treatment of confidential, proprietary, and trade secret information exchanged in discovery;

(d) Any agreements regarding phased discovery, including whether the parties propose to bifurcate or otherwise phase discovery on liability and damages; and

(e) Any other discovery-related matters that require early attention by the parties or the Court.

4.2 Fact discovery

4.2.1 Written discovery — Interrogatories and Requests for Production.

13. Plaintiff shall serve its first set of interrogatories and requests for production of documents on Defendant on or before August 5, 2024.

14. Defendant shall serve its first set of interrogatories and requests for production of documents on Plaintiff on or before August 19, 2024.

15. Responses and objections to all first sets of written discovery shall be due within thirty (30) days of service, calculated in accordance with the Federal Rules of Civil Procedure. Accordingly, Plaintiff's responses and objections to Defendant's first set of written discovery shall be due on or before September 18, 2024, and Defendant's responses and objections to Plaintiff's first set of written discovery shall be due on or before September 16, 2024 (the thirtieth day following the September 4, 2024 date of effective service, accounting for the three additional days provided under Rule 6(d) for service by electronic means, if applicable, as agreed by the parties).

16. Any supplemental or second sets of written discovery, including interrogatories, requests for production of documents, and requests for admission, shall be served on or before October 14, 2024. Responses and objections to any supplemental or second sets of written discovery shall be due within thirty (30) days of service thereof.

17. The parties agree that the limitations on the number of interrogatories set forth in Federal Rule of Civil Procedure 33(a)(1) (twenty-five interrogatories, including discrete subparts) shall apply unless otherwise agreed by the parties in writing or ordered by the Court.

4.2.2 Document Productions.

18. Defendant shall complete its initial production of documents responsive to Plaintiff's first set of requests for production on or before September 30, 2024.

19. Plaintiff shall complete its initial production of documents responsive to Defendant's first set of requests for production on or before October 7, 2024.

20. Thereafter, both parties shall make rolling supplemental productions on a reasonable and timely basis as additional responsive documents are identified. All rolling supplemental productions shall be completed no later than thirty (30) days after the close of fact discovery (i.e., no later than January 19, 2025), unless otherwise agreed by the parties or ordered by the Court.

21. Each production shall be accompanied by a cover letter or transmittal identifying the Bates-number range of the documents produced and referencing the specific requests for production to which the documents are responsive, to the extent practicable.

4.2.3 Depositions.

22. Notices for depositions pursuant to Federal Rule of Civil Procedure 30(b)(6) shall be served on or before November 1, 2024. The parties shall confer in good faith regarding the scheduling and topics of Rule 30(b)(6) depositions in advance of service of any such notice, and shall endeavor to reach agreement on reasonable deposition topics that are not unduly broad or burdensome.

23. All fact depositions, including depositions of individual party witnesses, non-party fact witnesses, and Rule 30(b)(6) corporate designees, shall be completed on or before December 20, 2024.

24. Each side shall be limited to ten (10) fact depositions, inclusive of any Rule 30(b)(6) depositions. For purposes of this limitation, each deponent noticed under Rule 30(b)(6) shall count as one deposition, regardless of the number of topics designated. Additional depositions may be taken only by leave of Court or by written stipulation of the parties filed with the Court.

25. Unless otherwise stipulated by the parties or ordered by the Court, each fact deposition shall be limited to seven (7) hours on the record, in accordance with Federal Rule of Civil Procedure 30(d)(1).

4.2.4 Third-Party discovery.

26. Any subpoenas directed to non-parties, including subpoenas duces tecum for the production of documents and tangible things and subpoenas for testimony, shall be served no later than September 30, 2024. The parties shall provide prompt notice to opposing counsel of any third-party subpoenas served.

27. All third-party document productions and third-party depositions shall be completed on or before November 30, 2024, unless a later date is necessitated by the scheduling needs of a non-party, in which case the deposing party shall promptly notify the Court and opposing counsel of any delay.

4.2.5 Close of Fact discovery.

28. The close of all fact discovery in this action shall be December 20, 2024. All fact discovery requests must be served sufficiently in advance of this deadline to permit timely responses and the completion of any responsive productions or depositions on or before the close of fact discovery. The parties are reminded that discovery requests served too late to allow compliance before the close of discovery may be deemed untimely.

4.3 ESI Protocol

29. The parties shall confer regarding ESI protocols and shall include a proposed ESI protocol as part of the Joint discovery Plan to be filed on or before July 15, 2024. The ESI protocol shall address, at a minimum, the following matters:

(a) The scope and methodology for the collection and review of ESI, including the identification of relevant custodians, data sources, and date ranges;

(b) The use of technology-assisted review ("TAR"), also known as predictive coding or continuous active learning, as an acceptable methodology for the review and identification of responsive ESI, subject to appropriate validation measures to be agreed upon by the parties or ordered by the Court;

(c) The production format for ESI, which the parties anticipate shall be TIFF images accompanied by extracted text (OCR text for image-only documents), searchable load files, and all reasonably available metadata fields, consistent with the default specifications of this Court;

(d) The handling of de-duplication, email threading, and family-group integrity during production;

(e) Procedures for the identification, logging, and handling of documents subject to claims of attorney-client privilege or work-product protection, including the use of categorical privilege logs where appropriate; and

(f) A clawback agreement or stipulated order pursuant to Federal Rule of Evidence 502(d) to address the inadvertent production of privileged or work-product-protected materials.

4.4 Confidentiality / Protective Order

30. The parties shall submit a proposed stipulated protective order governing the treatment of confidential information exchanged during discovery. The proposed protective order shall be submitted to the Court as part of the Joint discovery Plan, or, if the parties require additional time to negotiate its terms, no later than July 22, 2024. The proposed protective order shall include, at a minimum, provisions for designating information as "Confidential" and "Highly Confidential — Attorneys' Eyes Only," and shall set forth the procedures for challenging such designations.

SECTION 5: CLAIM CONSTRUCTION (MARKMAN) PROCEEDINGS

5.1 Exchange of Proposed Claim Constructions

31. On or before October 22, 2024, the parties shall simultaneously exchange their respective proposed constructions for all claim terms that either party contends require construction by the Court. Each party's exchange shall identify the specific claim terms at issue, the party's proposed construction for each term, and a brief identification of the intrinsic and extrinsic evidence supporting each proposed construction.

5.2 Joint Claim Construction Statement

32. On or before November 4, 2024, the parties shall file a Joint Claim Construction Statement with the Court. The Joint Claim Construction Statement shall include:

(a) A list of all claim terms for which the parties have reached agreement on construction, together with the agreed-upon constructions;

(b) A list of all claim terms that remain in dispute, together with each party's proposed construction for each disputed term;

(c) For each disputed term, a brief statement (not to exceed one page per term) identifying the primary intrinsic and extrinsic evidence upon which each party relies; and

(d) Identification of any claim terms for which a party contends that no construction is necessary beyond the plain and ordinary meaning of the term.

5.3 Individual Claim Construction Briefs

33. On or before October 28, 2024, each party may file an individual brief in support of its proposed claim constructions. Individual claim construction briefs shall not exceed thirty (30) pages (exclusive of tables of contents and authorities), and shall be incorporated into or filed alongside the Joint Claim Construction Statement. The parties may also file responsive briefs, if necessary, on a schedule to be determined by the Court.

5.4 Claim Construction (Markman) Hearing

34. A claim construction hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), is hereby scheduled for November 18, 2024. The hearing shall take place in Courtroom 6A, J. Caleb Boggs Federal Building, 844 North King Street, Wilmington, Delaware 19801, commencing at 9:30 a.m., or at such other time and location as the Court may direct. The parties shall be prepared to present argument on all disputed claim terms identified in the Joint Claim Construction Statement. The Court may, in its discretion, permit limited testimony from expert witnesses at the hearing.

5.5 Claim Construction Order

35. The Court anticipates issuing its Claim Construction Order on or before December 13, 2024. The parties acknowledge that the actual date of issuance of the Claim Construction Order is within the sole discretion of the Court, and that December 13, 2024 represents the outer bound for scheduling purposes. Subsequent deadlines in this Order that are dependent upon the Claim Construction Order shall be adjusted by the Court if the Claim Construction Order is issued after this anticipated date.

SECTION 6: EXPERT DISCOVERY

6.1 Opening of Expert discovery

36. Expert discovery shall open on January 13, 2025, following the close of fact discovery and the anticipated issuance of the Claim Construction Order.

6.2 Expert Reports — Opening

37. Defendant shall serve its opening expert reports on all topics on which Defendant bears the burden of proof, including but not limited to invalidity and damages, on or before January 27, 2025.

38. Plaintiff shall serve its opening expert reports on all topics on which Plaintiff bears the burden of proof, including but not limited to infringement and damages, on or before February 10, 2025.

39. To the extent that both parties intend to rely on expert testimony regarding damages, including but not limited to reasonable royalty calculations, lost profits, and any other theories of damages, both parties shall serve their respective damages expert reports on or before February 14, 2025. This deadline shall apply to damages expert reports regardless of which party bears the burden of proof on a particular damages theory.

40. All opening expert reports shall comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B), and shall include a complete statement of all opinions the expert will express and the basis and reasons for them, the facts or data considered by the expert in forming the opinions, any exhibits that will be used to summarize or support the opinions, the expert's qualifications and publications, a list of all other cases in which the expert has testified as an expert at trial or by deposition within the preceding four years, and a statement of the compensation to be paid for the study and testimony in the case.

6.3 Rebuttal Expert Reports

41. On or before March 3, 2025, the parties shall simultaneously exchange rebuttal expert reports. Rebuttal expert reports shall be limited in scope to matters raised in the opposing party's opening expert reports and shall not introduce new affirmative opinions or theories that should have been disclosed in opening reports.

6.4 Expert Depositions

42. All expert depositions shall be completed on or before March 28, 2025. Each side shall be entitled to depose all opposing experts who have submitted reports under Rule 26(a)(2)(B). Each expert deposition shall not exceed seven (7) hours of testimony on the record, unless the parties stipulate to a longer period or the Court grants leave for additional time upon a showing of good cause.

43. The parties shall cooperate in good faith in scheduling expert depositions to ensure that all such depositions are completed within the expert discovery period. Expert depositions shall be noticed at least fourteen (14) days in advance, unless the parties agree to shorter notice.

6.5 Close of Expert discovery

44. The close of all expert discovery in this action shall be March 28, 2025. No expert discovery requests, including expert deposition notices, may be served after this date without leave of Court.

SECTION 7: DISPOSITIVE MOTIONS

7.1 Summary Judgment / Partial Summary Judgment Motions

45. The deadline for filing any motion for summary judgment or partial summary judgment, including motions on individual claims, defenses, or counterclaims, shall be April 1, 2025. All such motions shall be accompanied by a supporting brief, a statement of undisputed material facts, and any supporting declarations, affidavits, and exhibits.

46. Oppositions to any motion for summary judgment or partial summary judgment, including any responsive statement of facts and supporting materials, shall be due on or before April 28, 2025.

47. Reply briefs in support of any motion for summary judgment or partial summary judgment shall be due on or before May 5, 2025.

48. Oral argument on dispositive motions shall be scheduled at the Court's discretion. The parties may request oral argument in their respective briefs, but the scheduling and conduct of any such argument shall be determined by the Court.

7.2 Daubert Motions

49. Any motions to exclude expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702, shall be filed concurrently with or prior to dispositive motions, on or before April 1, 2025. Daubert motions shall follow the same briefing schedule as summary judgment motions, with oppositions due on or before April 28, 2025, and reply briefs due on or before May 5, 2025.

50. The parties are encouraged to combine Daubert challenges with dispositive motions where appropriate to promote efficiency and to reduce duplicative briefing.

SECTION 8: SETTLEMENT CONFERENCES AND ALTERNATIVE DISPUTE RESOLUTION

8.1 Mediation.

51. The parties shall participate in at least one mediation session before a qualified neutral mediator on or before March 17, 2025. The mediation shall be conducted in accordance with the rules or procedures agreed upon by the parties and the selected mediator.

52. The mediator shall be selected by mutual agreement of the parties. If the parties are unable to agree upon a mediator within thirty (30) days of the date of this Order, the Court shall appoint a mediator from the roster of qualified mediators maintained by the Court or by the Federal Circuit Mediation Program, as appropriate.

53. Each party shall submit a confidential mediation statement to the mediator at least three (3) business days before the scheduled mediation session. Mediation statements shall not be filed with the Court and shall not be shared with opposing counsel unless the parties agree otherwise. The mediation statement shall include a summary of the party's claims or defenses, a candid assessment of the strengths and weaknesses of the party's case, the party's assessment of the value of the case, and any prior settlement discussions.

54. All mediation proceedings shall be confidential and shall not be disclosed to the Court except to the extent necessary to report that a mediation has occurred, whether settlement was reached, and, if so, the terms of any settlement.

8.2 Settlement Conference

55. The Court may, at any time upon request of either party or sua sponte, schedule a settlement conference before a United States Magistrate Judge. Any party seeking a settlement conference shall file a letter request with the Court, with a copy served on opposing counsel.

56. The parties shall promptly notify the Court in writing if settlement of all or any part of this action is reached at any stage of the proceedings. Settlement shall be memorialized in a written agreement and, to the extent applicable, presented to the Court for approval and entry of an appropriate order of dismissal.

SECTION 9: PRETRIAL PROCEEDINGS

9.1 Pretrial Disclosures

57. On or before August 15, 2025, the parties shall serve their respective pretrial disclosures in accordance with Federal Rule of Civil Procedure 26(a)(3). The pretrial disclosures shall include:

(a) The name and, if not previously provided, the address and telephone number of each witness the party expects to present at trial, separately identifying those witnesses the party expects to present and those it may call if the need arises;

(b) An identification of each document or other exhibit, including summaries of other evidence, that the party expects to offer, separately identifying those exhibits the party expects to offer and those it may offer if the need arises; and

(c) The designation of testimony to be presented by deposition, including a transcript of the pertinent portions of the deposition testimony the party intends to offer, together with citations to the page and line numbers of the designated testimony.

58. Objections to the pretrial disclosures, including objections to the use of deposition testimony and objections to the admissibility of any identified exhibit, shall be filed on or before August 29, 2025. Any objection not timely made, other than objections under Federal Rules of Evidence 402 and 403, shall be deemed waived unless excused by the Court for good cause shown.

9.2 Motions in Limine

59. All motions in limine shall be filed on or before September 5, 2025. Motions in limine shall be concise and shall address discrete evidentiary issues anticipated to arise at trial.

60. Oppositions to motions in limine shall be filed on or before September 15, 2025. Reply briefs in support of motions in limine shall be filed only with leave of Court.

9.3 Joint Pretrial Order

61. The parties shall confer in good faith and submit a proposed Joint Pretrial Order to the Court on or before September 12, 2025. The Joint Pretrial Order shall include, at a minimum:

(a) A brief statement of the claims and defenses remaining for trial;

(b) Stipulated facts and contested issues of fact;

(d) A joint list of witnesses each party intends to call at trial, together with a brief summary of the anticipated testimony of each witness;

(e) A joint list of exhibits each party intends to introduce at trial, with notations identifying exhibits to which the opposing party objects and the basis for the objection;

(f) Estimated length of trial; and

(g) Any other matters that the Court or the parties deem appropriate for inclusion in the Joint Pretrial Order.

9.4 Final Pretrial Conference

62. A Final Pretrial Conference is scheduled for September 22, 2025, or at such other time and date as the Court may direct. Lead trial counsel for each party shall attend the Final Pretrial Conference in person. The Final Pretrial Conference shall address all remaining pretrial matters, including the resolution of any pending motions in limine, the finalization of the proposed Joint Pretrial Order, and any other issues the Court deems necessary to address in advance of trial.

SECTION 10: TRIAL

63. This matter is set for trial commencing on September 30, 2025, or on such other date as the Court may designate. Trial shall take place in a courtroom to be designated by the Court in the J. Caleb Boggs Federal Building, 844 North King Street, Wilmington, Delaware 19801.

64. Plaintiff Apex Surgical Innovations, Inc. has demanded a trial by jury in its Complaint, and the right to a jury trial has been properly preserved. Defendant Solstice Biomedical, Inc. preserves all rights with respect to jury trial and does not at this time waive its right to a jury trial on any claim, defense, or counterclaim.

65. The parties estimate that the trial will require approximately seven (7) to ten (10) business days to complete, inclusive of jury selection, opening statements, presentation of evidence, closing arguments, and jury instructions. The parties shall confer in advance of the Final Pretrial Conference to refine this estimate and to propose an allocation of trial time.

SECTION 11: DISCOVERY DISPUTES

66. The parties shall confer in good faith to resolve all discovery disputes before filing any motion to compel, motion for a protective order, or other discovery-related motion with the Court. Counsel are reminded of their obligations under Local Rule 7.1.1 to certify that they have made a good-faith effort to resolve discovery disputes before presenting them to the Court.

67. In the event that the parties are unable to resolve a discovery dispute through the meet-and-confer process, the dispute shall be raised initially by submission of a joint letter-brief to the Honorable Magistrate Judge Colleen Pratt. Each party's portion of the joint letter-brief shall not exceed five (5) pages in length. The joint letter-brief shall identify the specific discovery at issue, summarize the parties' respective positions, and describe the efforts the parties have made to resolve the dispute informally. The letter-brief shall be filed via CM/ECF and shall be labeled "Joint Letter-Brief Regarding discovery Dispute."

68. Upon receipt of a joint letter-brief, Magistrate Judge Pratt may, in her discretion, resolve the dispute on the papers, schedule a telephonic conference with counsel, or order supplemental briefing. Telephonic conferences to address discovery disputes are available upon the request of either party and may be scheduled by contacting the Chambers of Magistrate Judge Pratt.

69. No formal motion practice concerning discovery disputes shall be initiated without prior leave of the Magistrate Judge or the Court, unless this Order or the Local Rules otherwise provide.

SECTION 12: MODIFICATION OF SCHEDULE

70. This Scheduling Order may be modified only upon a showing of good cause pursuant to Federal Rule of Civil Procedure 16(b)(4). The party seeking modification bears the burden of demonstrating that the deadline at issue cannot reasonably be met despite the diligence of the party seeking the extension.

71. Requests for modification of this Scheduling Order shall be made by joint motion of the parties, where the parties agree that modification is warranted, or by motion of the requesting party with notice to and an opportunity to be heard by the opposing party, where the parties do not agree. Any such motion shall set forth the specific deadline or deadlines for which modification is sought, the reasons why modification is necessary, the proposed new deadline(s), and the impact, if any, of the proposed modification on other deadlines in this Order and on the trial date.

72. The parties are reminded that the trial date set forth in this Order will not be continued absent extraordinary circumstances. All interim deadlines are designed to prepare the case for trial on the date set and should be treated accordingly.

SECTION 13: SERVICE AND FILING

73. All papers, including pleadings, motions, briefs, discovery materials filed with the Court, and other documents, shall be filed electronically via the Court's CM/ECF system in accordance with the Local Rules of the United States District Court for the District of Delaware and the Court's Electronic Filing Policies and Procedures. Service via CM/ECF on all counsel of record who are registered CM/ECF users shall constitute effective service under Federal Rule of Civil Procedure 5(b)(2)(E).

74. Courtesy copies of any brief, memorandum of law, or other substantive filing that exceeds twenty-five (25) pages in length shall be delivered to the Chambers of Chief Judge Richard G. Andrews within one (1) business day of electronic filing. Courtesy copies shall be clearly marked "COURTESY COPY" and shall include all exhibits and attachments referenced in the filing.

ORDER

For the foregoing reasons, and good cause having been shown, IT IS HEREBY ORDERED that the schedule set forth above shall govern the management of this case through trial. The parties and their counsel shall comply with all deadlines and requirements set forth in this Order. Failure to comply with the terms of this Order may result in sanctions, including but not limited to the exclusion of evidence, the striking of pleadings, or other relief as the Court deems appropriate.

SO ORDERED this __ day of ______, 2024.

________________________________________

Chief Judge Richard G. Andrews United States District Court for the District of Delaware

SUBMITTED BY / APPROVED AS TO FORM:

CALDERWOOD & HARKNESS LLP Counsel for Defendant Solstice Biomedical, Inc.

By: ________

Name: Marcus Delgado, Esquire

Title: Responsible Partner

Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800 Facsimile: (302) 555-7801

Email: mdelgado@calderwoodharkness.com

Date: June 28, 2024

HARGROVE, TATE & BENNINGTON LLP Counsel for Plaintiff Apex Surgical Innovations, Inc.

By: ________

Name: Victoria Stanton, Esquire

Title: Lead Counsel

Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 555-4100 Facsimile: (302) 555-4101

Email: vstanton@htblaw.com

Date: ________

CERTIFICATE OF SERVICE

I, Christy Bauer, an attorney with the law firm of Calderwood & Harkness LLP, hereby certify that on this 28th day of June 2024, I caused a true and correct copy of the foregoing [PROPOSED] SCHEDULING ORDER to be served upon all counsel of record in this action via the Court's CM/ECF electronic filing system, which will send a Notice of Electronic Filing to all registered participants, including:

Victoria Stanton, Esquire Derek Loomis, Esquire Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 vstanton@htblaw.com dloomis@htblaw.com

Counsel for Plaintiff Apex Surgical Innovations, Inc.

________________________________________

Christy Bauer, Esquire Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800

Email: cbauer@calderwoodharkness.com

EXHIBIT A

SUMMARY SCHEDULE OF KEY DATES AND DEADLINES

APEX SURGICAL INNOVATIONS, INC.,

Plaintiff,

Civil Action No. 1:24-cv-00587-RGA

Chief Judge Richard G. Andrews

SOLSTICE BIOMEDICAL, INC.,

Defendant.

Deadline	Event
July 2, 2024	Initial Scheduling Conference
July 15, 2024	Joint discovery Plan filed
July 22, 2024	Proposed Protective Order submitted (if not included with Joint discovery Plan)
August 5, 2024	Plaintiff's First Set of Interrogatories and Requests for Production served
August 19, 2024	Defendant's First Set of Interrogatories and Requests for Production served
September 16, 2024	Defendant's responses to Plaintiff's first set of written discovery
September 18, 2024	Plaintiff's responses to Defendant's first set of written discovery
September 30, 2024	Defendant's initial document production; third-party subpoena service deadline
October 7, 2024	Plaintiff's initial document production
October 14, 2024	Supplemental/second set written discovery service deadline
October 22, 2024	Simultaneous exchange of Proposed Claim Constructions
October 28, 2024	Individual Claim Construction Briefs filed
November 1, 2024	Rule 30(b)(6) deposition notices served
November 4, 2024	Joint Claim Construction Statement filed
November 18, 2024	Claim Construction (Markman) Hearing
November 30, 2024	Third-party discovery completion
December 13, 2024	Anticipated Claim Construction Order (outer bound)
December 20, 2024	Close of Fact discovery
January 13, 2025	Expert discovery opens
January 27, 2025	Defendant's Opening Expert Reports (invalidity, damages)
February 10, 2025	Plaintiff's Opening Expert Reports (infringement, damages)
February 14, 2025	Both parties' Damages Expert Reports deadline
March 3, 2025	Simultaneous exchange of Rebuttal Expert Reports
March 17, 2025	Mediation deadline

March 28, 2025	Close of Expert discovery (including all expert depositions)
April 1, 2025	Dispositive Motions and Daubert Motions filing deadline
April 28, 2025	Oppositions to Dispositive and Daubert Motions
May 5, 2025	Reply briefs in support of Dispositive and Daubert Motions
August 15, 2025	Pretrial Disclosures under Rule 26(a)(3)
August 29, 2025	Objections to Pretrial Disclosures
September 5, 2025	Motions in Limine filing deadline
September 12, 2025	Joint Pretrial Order submitted
September 15, 2025	Oppositions to Motions in Limine
September 22, 2025	Final Pretrial Conference
September 30, 2025	Trial

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
[PROPOSED] SCHEDULING ORDER
Filed by Calderwood & Harkness LLP, Counsel for Defendant Solstice Biomedical, Inc. Submitted in advance of the Initial Scheduling Conference set for July 2, 2024 Date of Draft: June 28, 2024
PREAMBLE
WHEREAS, Plaintiff Apex Surgical Innovations, Inc. ("Plaintiff" or "Apex") filed its Complaint in this action on May 9, 2024 (D.I. 1), alleging infringement of United States Patent Nos. 9,814,237 ("the '237 Patent"), 10,271,884 ("the '884 Patent"), and 10,932,105 ("the '105 Patent") (collectively, the "Asserted Patents") by Defendant Solstice Biomedical, Inc. ("Defendant" or "Solstice");
WHEREAS, Defendant Solstice Biomedical, Inc. was served with the Summons and Complaint on May 23, 2024, and thereafter timely filed its Answer, Affirmative Defenses, and Counterclaims on June 14, 2024 (D.I. 8), asserting counterclaims for declaratory judgment of non-infringement, invalidity, and inequitable conduct with respect to each of the Asserted Patents;
WHEREAS, the parties, through their respective counsel of record — Marcus Delgado of Calderwood & Harkness LLP, counsel for Defendant, and Victoria Stanton of Hargrove, Tate & Bennington LLP, counsel for Plaintiff — have conferred in good faith pursuant to Federal Rule of Civil Procedure 26(f), as required by this Court's Standing Order and the Federal Rules, to discuss the nature and basis of their claims and defenses, the possibilities for promptly settling or resolving the case, arrangements for making the disclosures required by Rule 26(a)(1), any issues about preserving discoverable information, and to develop a proposed discovery plan;
WHEREAS, the parties jointly submit this Proposed Scheduling Order for the Court's consideration in connection with the Initial Scheduling Conference currently set for July 2, 2024, at 10:00 a.m. before Chief Judge Richard G. Andrews; and
WHEREAS, this Court has the authority to enter a scheduling order governing the management of this case pursuant to Federal Rule of Civil Procedure 16(b), and the parties respectfully request that the Court adopt the schedule set forth herein, which the parties believe will promote the just, speedy, and inexpensive determination of this action;
NOW, THEREFORE, upon consideration of the foregoing, and for good cause shown, IT IS HEREBY ORDERED as follows:
SECTION 1: NATURE OF THE ACTION
1.  This is a patent infringement action arising under the patent laws of the United States, 35 U.S.C. § 1 et seq. The action involves three United States utility patents directed to locking-seal mechanisms and blade-deployment assemblies for use in minimally invasive surgical instruments, including, without limitation, trocar assemblies used in laparoscopic and other endoscopic surgical procedures.
2.  The Asserted Patents are identified as follows:
(a) U.S. Patent No. 9,814,237 ("the '237 Patent"), entitled "Locking Seal Assembly for Minimally Invasive Surgical Trocar," issued on November 14, 2017, with an expiration date of June 22, 2035;
(b) U.S. Patent No. 10,271,884 ("the '884 Patent"), entitled "Blade-Deployment Mechanism with Integrated Safety Interlock for Trocar Systems," issued on April 30, 2019, with an expiration date of September 15, 2036; and
(c) U.S. Patent No. 10,932,105 ("the '105 Patent"), entitled "Multi-Position Sealing Apparatus for Variable-Diameter Trocar Ports," issued on March 2, 2021, with an expiration date of January 10, 2038.
3.  The accused products in this action are the PrecisionEdge™ line of trocar assemblies designed, manufactured, offered for sale, sold, used, and/or imported into the United States by Defendant Solstice Biomedical, Inc., including specifically:
(a) The PrecisionEdge™ PE-5000 Series (5 mm trocar assembly);
(b) The PrecisionEdge™ PE-12000 Series (12 mm trocar assembly); and
(c) The PrecisionEdge™ PE-15000 Series (15 mm trocar assembly)
(collectively, the "Accused Products").
4.  In its Answer and Counterclaims, Defendant has asserted counterclaims for: (i) a declaratory judgment of non-infringement of each of the Asserted Patents; (ii) a declaratory judgment of invalidity of each of the Asserted Patents; and (iii) inequitable conduct during the prosecution of each of the Asserted Patents before the United States Patent and Trademark Office.
SECTION 2: PARTIES AND COUNSEL
2.1 Plaintiff.  
5.  Plaintiff Apex Surgical Innovations, Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 1220 North Market Street, Suite 550, Wilmington, Delaware 19801. Plaintiff is the owner by assignment of all right, title, and interest in and to each of the Asserted Patents, including the right to sue for and recover damages for past, present, and future infringement thereof.
6.  Plaintiff is represented in this action by the following counsel of record:
Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 555-4100 Facsimile: (302) 555-4101
Lead Counsel: Victoria Stanton, Esquire (vstanton@htblaw.com) Associate Counsel: Derek Loomis, Esquire (dloomis@htblaw.com)
2.2 Defendant.  
7.  Defendant Solstice Biomedical, Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal offices located at 3800 Concord Pike, Suite 410, Wilmington, Delaware 19803. Defendant is a United States operating subsidiary of Solstice Biomedical Devices Ltd., an Irish private limited company organized under the laws of Ireland with its registered office in Dublin, Ireland. Defendant designs, manufactures, markets, sells, offers for sale, and imports into the United States the Accused Products identified in Section 1 above.
8.  Defendant is represented in this action by the following counsel of record:
Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800 Facsimile: (302) 555-7801
Responsible Partner: Marcus Delgado, Esquire (mdelgado@calderwoodharkness.com) Lead Associate: Christy Bauer, Esquire (cbauer@calderwoodharkness.com) Working Associate: Peter Vassiliev, Esquire (pvassiliev@calderwoodharkness.com)
SECTION 3: JURISDICTION AND VENUE
9.  This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a), as this action arises under the patent laws of the United States, 35 U.S.C. § 1 et seq.
10.  This Court has personal jurisdiction over Defendant Solstice Biomedical, Inc. by virtue of Defendant's incorporation under the laws of the State of Delaware. Defendant does not contest personal jurisdiction in this forum.
11.  Venue is proper in the District of Delaware pursuant to 28 U.S.C. §§ 1391(b) and 1400(b), as Defendant is incorporated in the State of Delaware and is therefore deemed to reside in this judicial district for purposes of the patent venue statute.
SECTION 4: DISCOVERY PLAN AND SCHEDULE
4.1 Joint discovery Plan
12.  The parties shall meet and confer and thereafter file a Joint discovery Plan with the Court on or before July 15, 2024. The Joint discovery Plan shall address, at a minimum, the following subjects:
(a) Proposed protocols for the identification, preservation, collection, review, and production of electronically stored information ("ESI"), including the format of production, the use of search terms or technology-assisted review, and any limitations on the scope of ESI discovery;
(b) The format in which documents and ESI shall be produced, including native-format production, image-based production, or a combination thereof;
(c) A proposed stipulated protective order governing the treatment of confidential, proprietary, and trade secret information exchanged in discovery;
(d) Any agreements regarding phased discovery, including whether the parties propose to bifurcate or otherwise phase discovery on liability and damages; and
(e) Any other discovery-related matters that require early attention by the parties or the Court.
4.2 Fact discovery
4.2.1 Written discovery — Interrogatories and Requests for Production.  
13.  Plaintiff shall serve its first set of interrogatories and requests for production of documents on Defendant on or before August 5, 2024.
14.  Defendant shall serve its first set of interrogatories and requests for production of documents on Plaintiff on or before August 19, 2024.
15.  Responses and objections to all first sets of written discovery shall be due within thirty (30) days of service, calculated in accordance with the Federal Rules of Civil Procedure. Accordingly, Plaintiff's responses and objections to Defendant's first set of written discovery shall be due on or before September 18, 2024, and Defendant's responses and objections to Plaintiff's first set of written discovery shall be due on or before September 16, 2024 (the thirtieth day following the September 4, 2024 date of effective service, accounting for the three additional days provided under Rule 6(d) for service by electronic means, if applicable, as agreed by the parties).
16.  Any supplemental or second sets of written discovery, including interrogatories, requests for production of documents, and requests for admission, shall be served on or before October 14, 2024. Responses and objections to any supplemental or second sets of written discovery shall be due within thirty (30) days of service thereof.
17.  The parties agree that the limitations on the number of interrogatories set forth in Federal Rule of Civil Procedure 33(a)(1) (twenty-five interrogatories, including discrete subparts) shall apply unless otherwise agreed by the parties in writing or ordered by the Court.
4.2.2 Document Productions.  
18.  Defendant shall complete its initial production of documents responsive to Plaintiff's first set of requests for production on or before September 30, 2024.
19.  Plaintiff shall complete its initial production of documents responsive to Defendant's first set of requests for production on or before October 7, 2024.
20.  Thereafter, both parties shall make rolling supplemental productions on a reasonable and timely basis as additional responsive documents are identified. All rolling supplemental productions shall be completed no later than thirty (30) days after the close of fact discovery (i.e., no later than January 19, 2025), unless otherwise agreed by the parties or ordered by the Court.
21.  Each production shall be accompanied by a cover letter or transmittal identifying the Bates-number range of the documents produced and referencing the specific requests for production to which the documents are responsive, to the extent practicable.
4.2.3 Depositions.  
22.  Notices for depositions pursuant to Federal Rule of Civil Procedure 30(b)(6) shall be served on or before November 1, 2024. The parties shall confer in good faith regarding the scheduling and topics of Rule 30(b)(6) depositions in advance of service of any such notice, and shall endeavor to reach agreement on reasonable deposition topics that are not unduly broad or burdensome.
23.  All fact depositions, including depositions of individual party witnesses, non-party fact witnesses, and Rule 30(b)(6) corporate designees, shall be completed on or before December 20, 2024.
24.  Each side shall be limited to ten (10) fact depositions, inclusive of any Rule 30(b)(6) depositions. For purposes of this limitation, each deponent noticed under Rule 30(b)(6) shall count as one deposition, regardless of the number of topics designated. Additional depositions may be taken only by leave of Court or by written stipulation of the parties filed with the Court.
25.  Unless otherwise stipulated by the parties or ordered by the Court, each fact deposition shall be limited to seven (7) hours on the record, in accordance with Federal Rule of Civil Procedure 30(d)(1).
4.2.4 Third-Party discovery.  
26.  Any subpoenas directed to non-parties, including subpoenas duces tecum for the production of documents and tangible things and subpoenas for testimony, shall be served no later than September 30, 2024. The parties shall provide prompt notice to opposing counsel of any third-party subpoenas served.
27.  All third-party document productions and third-party depositions shall be completed on or before November 30, 2024, unless a later date is necessitated by the scheduling needs of a non-party, in which case the deposing party shall promptly notify the Court and opposing counsel of any delay.
4.2.5 Close of Fact discovery.  
28.  The close of all fact discovery in this action shall be December 20, 2024. All fact discovery requests must be served sufficiently in advance of this deadline to permit timely responses and the completion of any responsive productions or depositions on or before the close of fact discovery. The parties are reminded that discovery requests served too late to allow compliance before the close of discovery may be deemed untimely.
4.3 ESI Protocol
29.  The parties shall confer regarding ESI protocols and shall include a proposed ESI protocol as part of the Joint discovery Plan to be filed on or before July 15, 2024. The ESI protocol shall address, at a minimum, the following matters:
(a) The scope and methodology for the collection and review of ESI, including the identification of relevant custodians, data sources, and date ranges;
(b) The use of technology-assisted review ("TAR"), also known as predictive coding or continuous active learning, as an acceptable methodology for the review and identification of responsive ESI, subject to appropriate validation measures to be agreed upon by the parties or ordered by the Court;
(c) The production format for ESI, which the parties anticipate shall be TIFF images accompanied by extracted text (OCR text for image-only documents), searchable load files, and all reasonably available metadata fields, consistent with the default specifications of this Court;
(d) The handling of de-duplication, email threading, and family-group integrity during production;
(e) Procedures for the identification, logging, and handling of documents subject to claims of attorney-client privilege or work-product protection, including the use of categorical privilege logs where appropriate; and
(f) A clawback agreement or stipulated order pursuant to Federal Rule of Evidence 502(d) to address the inadvertent production of privileged or work-product-protected materials.
4.4 Confidentiality / Protective Order
30.  The parties shall submit a proposed stipulated protective order governing the treatment of confidential information exchanged during discovery. The proposed protective order shall be submitted to the Court as part of the Joint discovery Plan, or, if the parties require additional time to negotiate its terms, no later than July 22, 2024. The proposed protective order shall include, at a minimum, provisions for designating information as "Confidential" and "Highly Confidential — Attorneys' Eyes Only," and shall set forth the procedures for challenging such designations.
SECTION 5: CLAIM CONSTRUCTION (MARKMAN) PROCEEDINGS
5.1 Exchange of Proposed Claim Constructions
31.  On or before October 22, 2024, the parties shall simultaneously exchange their respective proposed constructions for all claim terms that either party contends require construction by the Court. Each party's exchange shall identify the specific claim terms at issue, the party's proposed construction for each term, and a brief identification of the intrinsic and extrinsic evidence supporting each proposed construction.
5.2 Joint Claim Construction Statement
32.  On or before November 4, 2024, the parties shall file a Joint Claim Construction Statement with the Court. The Joint Claim Construction Statement shall include:
(a) A list of all claim terms for which the parties have reached agreement on construction, together with the agreed-upon constructions;
(b) A list of all claim terms that remain in dispute, together with each party's proposed construction for each disputed term;
(c) For each disputed term, a brief statement (not to exceed one page per term) identifying the primary intrinsic and extrinsic evidence upon which each party relies; and
(d) Identification of any claim terms for which a party contends that no construction is necessary beyond the plain and ordinary meaning of the term.
5.3 Individual Claim Construction Briefs
33.  On or before October 28, 2024, each party may file an individual brief in support of its proposed claim constructions. Individual claim construction briefs shall not exceed thirty (30) pages (exclusive of tables of contents and authorities), and shall be incorporated into or filed alongside the Joint Claim Construction Statement. The parties may also file responsive briefs, if necessary, on a schedule to be determined by the Court.
5.4 Claim Construction (Markman) Hearing
34.  A claim construction hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), is hereby scheduled for November 18, 2024. The hearing shall take place in Courtroom 6A, J. Caleb Boggs Federal Building, 844 North King Street, Wilmington, Delaware 19801, commencing at 9:30 a.m., or at such other time and location as the Court may direct. The parties shall be prepared to present argument on all disputed claim terms identified in the Joint Claim Construction Statement. The Court may, in its discretion, permit limited testimony from expert witnesses at the hearing.
5.5 Claim Construction Order
35.  The Court anticipates issuing its Claim Construction Order on or before December 13, 2024. The parties acknowledge that the actual date of issuance of the Claim Construction Order is within the sole discretion of the Court, and that December 13, 2024 represents the outer bound for scheduling purposes. Subsequent deadlines in this Order that are dependent upon the Claim Construction Order shall be adjusted by the Court if the Claim Construction Order is issued after this anticipated date.
SECTION 6: EXPERT DISCOVERY
6.1 Opening of Expert discovery
36.  Expert discovery shall open on January 13, 2025, following the close of fact discovery and the anticipated issuance of the Claim Construction Order.
6.2 Expert Reports — Opening
37.  Defendant shall serve its opening expert reports on all topics on which Defendant bears the burden of proof, including but not limited to invalidity and damages, on or before January 27, 2025.
38.  Plaintiff shall serve its opening expert reports on all topics on which Plaintiff bears the burden of proof, including but not limited to infringement and damages, on or before February 10, 2025.
39.  To the extent that both parties intend to rely on expert testimony regarding damages, including but not limited to reasonable royalty calculations, lost profits, and any other theories of damages, both parties shall serve their respective damages expert reports on or before February 14, 2025. This deadline shall apply to damages expert reports regardless of which party bears the burden of proof on a particular damages theory.
40.  All opening expert reports shall comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B), and shall include a complete statement of all opinions the expert will express and the basis and reasons for them, the facts or data considered by the expert in forming the opinions, any exhibits that will be used to summarize or support the opinions, the expert's qualifications and publications, a list of all other cases in which the expert has testified as an expert at trial or by deposition within the preceding four years, and a statement of the compensation to be paid for the study and testimony in the case.
6.3 Rebuttal Expert Reports
41.  On or before March 3, 2025, the parties shall simultaneously exchange rebuttal expert reports. Rebuttal expert reports shall be limited in scope to matters raised in the opposing party's opening expert reports and shall not introduce new affirmative opinions or theories that should have been disclosed in opening reports.
6.4 Expert Depositions
42.  All expert depositions shall be completed on or before March 28, 2025. Each side shall be entitled to depose all opposing experts who have submitted reports under Rule 26(a)(2)(B). Each expert deposition shall not exceed seven (7) hours of testimony on the record, unless the parties stipulate to a longer period or the Court grants leave for additional time upon a showing of good cause.
43.  The parties shall cooperate in good faith in scheduling expert depositions to ensure that all such depositions are completed within the expert discovery period. Expert depositions shall be noticed at least fourteen (14) days in advance, unless the parties agree to shorter notice.
6.5 Close of Expert discovery
44.  The close of all expert discovery in this action shall be March 28, 2025. No expert discovery requests, including expert deposition notices, may be served after this date without leave of Court.
SECTION 7: DISPOSITIVE MOTIONS
7.1 Summary Judgment / Partial Summary Judgment Motions
45.  The deadline for filing any motion for summary judgment or partial summary judgment, including motions on individual claims, defenses, or counterclaims, shall be April 1, 2025. All such motions shall be accompanied by a supporting brief, a statement of undisputed material facts, and any supporting declarations, affidavits, and exhibits.
46.  Oppositions to any motion for summary judgment or partial summary judgment, including any responsive statement of facts and supporting materials, shall be due on or before April 28, 2025.
47.  Reply briefs in support of any motion for summary judgment or partial summary judgment shall be due on or before May 5, 2025.
48.  Oral argument on dispositive motions shall be scheduled at the Court's discretion. The parties may request oral argument in their respective briefs, but the scheduling and conduct of any such argument shall be determined by the Court.
7.2 Daubert Motions
49.  Any motions to exclude expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702, shall be filed concurrently with or prior to dispositive motions, on or before April 1, 2025. Daubert motions shall follow the same briefing schedule as summary judgment motions, with oppositions due on or before April 28, 2025, and reply briefs due on or before May 5, 2025.
50.  The parties are encouraged to combine Daubert challenges with dispositive motions where appropriate to promote efficiency and to reduce duplicative briefing.
SECTION 8: SETTLEMENT CONFERENCES AND ALTERNATIVE DISPUTE RESOLUTION
8.1 Mediation.  
51.  The parties shall participate in at least one mediation session before a qualified neutral mediator on or before March 17, 2025. The mediation shall be conducted in accordance with the rules or procedures agreed upon by the parties and the selected mediator.
52.  The mediator shall be selected by mutual agreement of the parties. If the parties are unable to agree upon a mediator within thirty (30) days of the date of this Order, the Court shall appoint a mediator from the roster of qualified mediators maintained by the Court or by the Federal Circuit Mediation Program, as appropriate.
53.  Each party shall submit a confidential mediation statement to the mediator at least three (3) business days before the scheduled mediation session. Mediation statements shall not be filed with the Court and shall not be shared with opposing counsel unless the parties agree otherwise. The mediation statement shall include a summary of the party's claims or defenses, a candid assessment of the strengths and weaknesses of the party's case, the party's assessment of the value of the case, and any prior settlement discussions.
54.  All mediation proceedings shall be confidential and shall not be disclosed to the Court except to the extent necessary to report that a mediation has occurred, whether settlement was reached, and, if so, the terms of any settlement.
8.2 Settlement Conference
55.  The Court may, at any time upon request of either party or sua sponte, schedule a settlement conference before a United States Magistrate Judge. Any party seeking a settlement conference shall file a letter request with the Court, with a copy served on opposing counsel.
56.  The parties shall promptly notify the Court in writing if settlement of all or any part of this action is reached at any stage of the proceedings. Settlement shall be memorialized in a written agreement and, to the extent applicable, presented to the Court for approval and entry of an appropriate order of dismissal.
SECTION 9: PRETRIAL PROCEEDINGS
9.1 Pretrial Disclosures
57.  On or before August 15, 2025, the parties shall serve their respective pretrial disclosures in accordance with Federal Rule of Civil Procedure 26(a)(3). The pretrial disclosures shall include:
(a) The name and, if not previously provided, the address and telephone number of each witness the party expects to present at trial, separately identifying those witnesses the party expects to present and those it may call if the need arises;
(b) An identification of each document or other exhibit, including summaries of other evidence, that the party expects to offer, separately identifying those exhibits the party expects to offer and those it may offer if the need arises; and
(c) The designation of testimony to be presented by deposition, including a transcript of the pertinent portions of the deposition testimony the party intends to offer, together with citations to the page and line numbers of the designated testimony.
58.  Objections to the pretrial disclosures, including objections to the use of deposition testimony and objections to the admissibility of any identified exhibit, shall be filed on or before August 29, 2025. Any objection not timely made, other than objections under Federal Rules of Evidence 402 and 403, shall be deemed waived unless excused by the Court for good cause shown.
9.2 Motions in Limine
59.  All motions in limine shall be filed on or before September 5, 2025. Motions in limine shall be concise and shall address discrete evidentiary issues anticipated to arise at trial.
60.  Oppositions to motions in limine shall be filed on or before September 15, 2025. Reply briefs in support of motions in limine shall be filed only with leave of Court.
9.3 Joint Pretrial Order
61.  The parties shall confer in good faith and submit a proposed Joint Pretrial Order to the Court on or before September 12, 2025. The Joint Pretrial Order shall include, at a minimum:
(a) A brief statement of the claims and defenses remaining for trial;
(b) Stipulated facts and contested issues of fact;
(c) Contested issues of law;
(d) A joint list of witnesses each party intends to call at trial, together with a brief summary of the anticipated testimony of each witness;
(e) A joint list of exhibits each party intends to introduce at trial, with notations identifying exhibits to which the opposing party objects and the basis for the objection;
(f) Estimated length of trial; and
(g) Any other matters that the Court or the parties deem appropriate for inclusion in the Joint Pretrial Order.
9.4 Final Pretrial Conference
62.  A Final Pretrial Conference is scheduled for September 22, 2025, or at such other time and date as the Court may direct. Lead trial counsel for each party shall attend the Final Pretrial Conference in person. The Final Pretrial Conference shall address all remaining pretrial matters, including the resolution of any pending motions in limine, the finalization of the proposed Joint Pretrial Order, and any other issues the Court deems necessary to address in advance of trial.
SECTION 10: TRIAL
63.  This matter is set for trial commencing on September 30, 2025, or on such other date as the Court may designate. Trial shall take place in a courtroom to be designated by the Court in the J. Caleb Boggs Federal Building, 844 North King Street, Wilmington, Delaware 19801.
64.  Plaintiff Apex Surgical Innovations, Inc. has demanded a trial by jury in its Complaint, and the right to a jury trial has been properly preserved. Defendant Solstice Biomedical, Inc. preserves all rights with respect to jury trial and does not at this time waive its right to a jury trial on any claim, defense, or counterclaim.
65.  The parties estimate that the trial will require approximately seven (7) to ten (10) business days to complete, inclusive of jury selection, opening statements, presentation of evidence, closing arguments, and jury instructions. The parties shall confer in advance of the Final Pretrial Conference to refine this estimate and to propose an allocation of trial time.
SECTION 11: DISCOVERY DISPUTES
66.  The parties shall confer in good faith to resolve all discovery disputes before filing any motion to compel, motion for a protective order, or other discovery-related motion with the Court. Counsel are reminded of their obligations under Local Rule 7.1.1 to certify that they have made a good-faith effort to resolve discovery disputes before presenting them to the Court.
67.  In the event that the parties are unable to resolve a discovery dispute through the meet-and-confer process, the dispute shall be raised initially by submission of a joint letter-brief to the Honorable Magistrate Judge Colleen Pratt. Each party's portion of the joint letter-brief shall not exceed five (5) pages in length. The joint letter-brief shall identify the specific discovery at issue, summarize the parties' respective positions, and describe the efforts the parties have made to resolve the dispute informally. The letter-brief shall be filed via CM/ECF and shall be labeled "Joint Letter-Brief Regarding discovery Dispute."
68.  Upon receipt of a joint letter-brief, Magistrate Judge Pratt may, in her discretion, resolve the dispute on the papers, schedule a telephonic conference with counsel, or order supplemental briefing. Telephonic conferences to address discovery disputes are available upon the request of either party and may be scheduled by contacting the Chambers of Magistrate Judge Pratt.
69.  No formal motion practice concerning discovery disputes shall be initiated without prior leave of the Magistrate Judge or the Court, unless this Order or the Local Rules otherwise provide.
SECTION 12: MODIFICATION OF SCHEDULE
70.  This Scheduling Order may be modified only upon a showing of good cause pursuant to Federal Rule of Civil Procedure 16(b)(4). The party seeking modification bears the burden of demonstrating that the deadline at issue cannot reasonably be met despite the diligence of the party seeking the extension.
71.  Requests for modification of this Scheduling Order shall be made by joint motion of the parties, where the parties agree that modification is warranted, or by motion of the requesting party with notice to and an opportunity to be heard by the opposing party, where the parties do not agree. Any such motion shall set forth the specific deadline or deadlines for which modification is sought, the reasons why modification is necessary, the proposed new deadline(s), and the impact, if any, of the proposed modification on other deadlines in this Order and on the trial date.
72.  The parties are reminded that the trial date set forth in this Order will not be continued absent extraordinary circumstances. All interim deadlines are designed to prepare the case for trial on the date set and should be treated accordingly.
SECTION 13: SERVICE AND FILING
73.  All papers, including pleadings, motions, briefs, discovery materials filed with the Court, and other documents, shall be filed electronically via the Court's CM/ECF system in accordance with the Local Rules of the United States District Court for the District of Delaware and the Court's Electronic Filing Policies and Procedures. Service via CM/ECF on all counsel of record who are registered CM/ECF users shall constitute effective service under Federal Rule of Civil Procedure 5(b)(2)(E).
74.  Courtesy copies of any brief, memorandum of law, or other substantive filing that exceeds twenty-five (25) pages in length shall be delivered to the Chambers of Chief Judge Richard G. Andrews within one (1) business day of electronic filing. Courtesy copies shall be clearly marked "COURTESY COPY" and shall include all exhibits and attachments referenced in the filing.
ORDER
For the foregoing reasons, and good cause having been shown, IT IS HEREBY ORDERED that the schedule set forth above shall govern the management of this case through trial. The parties and their counsel shall comply with all deadlines and requirements set forth in this Order. Failure to comply with the terms of this Order may result in sanctions, including but not limited to the exclusion of evidence, the striking of pleadings, or other relief as the Court deems appropriate.
SO ORDERED this __ day of ______, 2024.
________________________________________
Chief Judge Richard G. Andrews United States District Court for the District of Delaware
SUBMITTED BY / APPROVED AS TO FORM:
CALDERWOOD & HARKNESS LLP Counsel for Defendant Solstice Biomedical, Inc.
By: ________
Name: Marcus Delgado, Esquire
Title: Responsible Partner
Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800 Facsimile: (302) 555-7801
Email: mdelgado@calderwoodharkness.com
Date: June 28, 2024
HARGROVE, TATE & BENNINGTON LLP Counsel for Plaintiff Apex Surgical Innovations, Inc.
By: ________
Name: Victoria Stanton, Esquire
Title: Lead Counsel
Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 555-4100 Facsimile: (302) 555-4101
Email: vstanton@htblaw.com
Date: ________
CERTIFICATE OF SERVICE
I, Christy Bauer, an attorney with the law firm of Calderwood & Harkness LLP, hereby certify that on this 28th day of June 2024, I caused a true and correct copy of the foregoing [PROPOSED] SCHEDULING ORDER to be served upon all counsel of record in this action via the Court's CM/ECF electronic filing system, which will send a Notice of Electronic Filing to all registered participants, including:
Victoria Stanton, Esquire Derek Loomis, Esquire Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801 vstanton@htblaw.com dloomis@htblaw.com
Counsel for Plaintiff Apex Surgical Innovations, Inc.
________________________________________
Christy Bauer, Esquire Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7800
Email: cbauer@calderwoodharkness.com
EXHIBIT A
SUMMARY SCHEDULE OF KEY DATES AND DEADLINES
APEX SURGICAL INNOVATIONS, INC.,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Civil Action No. 1:24-cv-00587-RGA
v.
Chief Judge Richard G. Andrews
SOLSTICE BIOMEDICAL, INC.,
<!-- indent:2 -->Defendant.<!-- /indent -->
Deadline | Event
July 2, 2024 | Initial Scheduling Conference
July 15, 2024 | Joint discovery Plan filed
July 22, 2024 | Proposed Protective Order submitted (if not included with Joint discovery Plan)
August 5, 2024 | Plaintiff's First Set of Interrogatories and Requests for Production served
August 19, 2024 | Defendant's First Set of Interrogatories and Requests for Production served
September 16, 2024 | Defendant's responses to Plaintiff's first set of written discovery
September 18, 2024 | Plaintiff's responses to Defendant's first set of written discovery
September 30, 2024 | Defendant's initial document production; third-party subpoena service deadline
October 7, 2024 | Plaintiff's initial document production
October 14, 2024 | Supplemental/second set written discovery service deadline
October 22, 2024 | Simultaneous exchange of Proposed Claim Constructions
October 28, 2024 | Individual Claim Construction Briefs filed
November 1, 2024 | Rule 30(b)(6) deposition notices served
November 4, 2024 | Joint Claim Construction Statement filed
November 18, 2024 | Claim Construction (Markman) Hearing
November 30, 2024 | Third-party discovery completion
December 13, 2024 | Anticipated Claim Construction Order (outer bound)
December 20, 2024 | Close of Fact discovery
January 13, 2025 | Expert discovery opens
January 27, 2025 | Defendant's Opening Expert Reports (invalidity, damages)
February 10, 2025 | Plaintiff's Opening Expert Reports (infringement, damages)
February 14, 2025 | Both parties' Damages Expert Reports deadline
March 3, 2025 | Simultaneous exchange of Rebuttal Expert Reports
March 17, 2025 | Mediation deadline
March 28, 2025 | Close of Expert discovery (including all expert depositions)
April 1, 2025 | Dispositive Motions and Daubert Motions filing deadline
April 28, 2025 | Oppositions to Dispositive and Daubert Motions
May 5, 2025 | Reply briefs in support of Dispositive and Daubert Motions
August 15, 2025 | Pretrial Disclosures under Rule 26(a)(3)
August 29, 2025 | Objections to Pretrial Disclosures
September 5, 2025 | Motions in Limine filing deadline
September 12, 2025 | Joint Pretrial Order submitted
September 15, 2025 | Oppositions to Motions in Limine
September 22, 2025 | Final Pretrial Conference
September 30, 2025 | Trial