The Latest and Greatest – Judge Albright’s OGP 3.2
As part of Judge Albright’s continuous attempts to make litigating in the Waco Division optimally efficient, Judge Albright recently released his newest Order Governing Proceedings (OGP) Version 3.2. The newest version has some significant changes front the prior order, namely the briefing schedule for Markman and including default venue/jurisdiction discovery limits.
Here are the new additions to OGP Version 3.2:
(1) In-person attendance for Rule 16 Case Management Conferences are now off the table. CMCs are now conducted strictly via telephonic conference. In addition, rather than specifying the CMC agenda in the OGP, the Court directs parties to “be prepared to discuss any pre-Markman issues raised in the parties’ joint Case Readiness Status Report” (which we previously addressed on the blog).
(2) Default Venue and Jurisdictional Discovery Limits: The OGP now provides for default discovery limits for venue and jurisdictional discovery. Specifically, the default limits are five interrogatories per party, five requests for production per party, and four hours for deposing a Rule 30(b)(6) witness per party. Interestingly, Judge Albright provided additional discovery for parties who are opposing a motion in which a party “provides multiple declarations in support or against” a motion to transfer venue or a motion to dismiss based on a lack of jurisdiction. The reason for the additional discovery is most likely based on Judge Albright’s position that the “information asymmetry between the parties at this stage of the case, which unfairly handicaps the patentee/non-movant as if can only find potential witnesses using public information whereas the alleged infringer/movant has both public and confidential information.” Fintiv v. Apple, No. 6:18-cv-00372-ADA, 2019 WL 4743678, at *4 (W.D. Tex. Sept. 13, 2019).
(3) Markman Briefing Changes: Judge Albright’s first change regarding claim-construction briefing procedures reduces the default limit for the number of claim terms to be construed:
|1-2 Patents (per case)||3-5 Patents||More than 5 Patents|
Additionally, the Court now requires non-simultaneous claim construction briefing, with the following limits:
|Brief||1-2 Patents||3-5 Patents||More than 5 Patents|
|20 pages||30 pages||30 pages, plus 5 additional pages for each patent over 5 up to a maximum of 45 pages|
|20 pages||30 pages||30 pages, plus 5 additional pages for each patent over 5 up to a maximum of 45 page|
|10 pages||15 pages||15 pages, plus 2 additional pages for each patent over 5 up to a maximum of 21 pages|
|Sur-Reply||10 pages||15 pages||15 pages, plus 2 additional pages for each patent over 5 up to a maximum of 21 pages|
The Court also set a default order of terms in the parties’ briefs based on the patent number (lowest to highest), the claim number (lowest to highest), and order of appearance within the lowest number patent and claim. The Court provides the following as an example:
- 10,000,000 Patent, Claim 1, Term 1
- 10,000,000 Patent, Claim 1, Term 2 (where Term 2 appears later in the claim than does Term 1)
- 10,000,000 Patent, Claim 2, Term 3 (where Term 3 appears later in the claim than does Terms 2 and 3)
- 10,000,001 Patent, Claim 1, Term 4
- 10,000,001 Patent, Claim 3, Term 5
- 10,000,002 Patent, Claim 2, Term 6
The reduction in default claim limits and the non-simultaneous briefing requirement (which reduces overall pages submitted) are undoubtedly an effort to streamline the Markman process and make it more efficient for an increasingly busy Court.