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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

STANDING ORDER GOVERNING PROCEEDINGS – PATENT CASES

This Order shall govern proceedings in all patent cases pending before the undersigned and the 

following deadlines shall apply.

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1. Patent cases shall be set for a Rule 16 Case Management Conference (CMC) in 

accordance with the Court’s Standing Order Regarding Notice of Readiness in Patent 

Cases. 

2. Not later than 7 days before the CMC. Plaintiff shall serve preliminary infringement 

contentions in the form of a chart setting forth where in the accused product(s) each 

element of the asserted claim(s) are found. Plaintiff shall also identify the priority date 

(i.e. the earliest date of invention) for each asserted claim and produce: (1) all documents 

evidencing conception and reduction to practice for each claimed invention, and (2) a 

copy of the file history for each patent in suit.

3. Two weeks after the CMC. The Parties shall submit an agreed Scheduling Order that 

generally tracks the exemplary schedule attached as Exhibit A to this Order, which the 

Court anticipates will be suitable for most cases. If the parties cannot agree, the parties 

shall submit a Joint Motion for entry of Scheduling Order briefly setting forth their 

respective positions on items where they cannot agree. Absent agreement of the parties, 

the Plaintiff shall be responsible for the timely submission of this and other joint filings.

4. Seven weeks after the CMC. Defendant shall serve preliminary invalidity contentions in 

the form of (1) a chart setting forth where in the prior art references each element of the 

asserted claim(s) are found, (2) an identification of any limitations the Defendant 

contends are indefinite or lack written description under section 112, and (3) an 

identification of any claims the Defendant contends are directed to ineligible subject 

matter under section 101. Defendant shall also produce (1) all prior art referenced in the 

invalidity contentions, (2) technical documents, including software where applicable, 

sufficient to show the operation of the accused product(s).

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1 This OGP will be effective upon entry in all patent cases pending before the undersigned. If there are 

conflicts between this OGP and prior versions in existing cases that the parties are unable to resolve, they 

are encouraged to contact the Court for guidance via email to the Court’s law clerk.

2 To the extent it may promote early resolution, the Court encourages the parties to exchange license and 

sales information, but any such exchange is optional during the pre-Markman phase of the case.

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DISCOVERY

Except with regard to venue, jurisdictional, and claim construction-related discovery, all other 

discovery shall be stayed until after the Markman hearing. Notwithstanding this general stay of 

discovery, the Court will permit limited discovery by agreement of the parties, or upon request, 

where exceptional circumstances warrant. For example, if discovery outside the United States is 

contemplated, the Court will be inclined to allow such discovery to commence before the 

Markman hearing.

Following the Markman hearing, the following discovery limits will apply. The Court will 

consider reasonable requests to adjust these limits should circumstances warrant.

1. Interrogatories: 30 per side3

2. Requests for Admission: 45 per side

3. Requests for Production: 75 per side

4. Fact Depositions: 70 hours per side (for both party and non-party witnesses combined)

5. Expert Depositions: 7 hours per report4

Electronically Stored Information. As a preliminary matter, the Court will not require general 

search and production of email or other electronically stored information (ESI), absent a showing 

of good cause. If a party believes targeted email/ESI discovery is necessary, it shall propose a 

procedure identifying custodians and search terms it believes the opposing party should search. 

The opposing party can oppose, or propose an alternate plan. If the parties cannot agree, they 

shall contact the Court to discuss their respective positions.

DISCOVERY DISPUTES

A party may not file a Motion to Compel discovery unless: (1) lead counsel have met and 

conferred in good faith to try to resolve the dispute, and (2) the party has contacted the Court’s 

law clerk to summarize the dispute and the parties’ respective positions. When contacting the 

law clerks for discovery or procedural disputes, the following procedures shall apply.

If the parties are at an impasse after lead counsel have met and conferred, the requesting 

party shall email a summary of the issue(s) and specific relief requested to opposing counsel. 

The email shall not exceed 500 words and shall include all counsel of record. The responding 

party shall have three business days thereafter to provide an email response, also not to exceed 

500 words. In situations where multiple items are at issue in the dispute (such as responses to 

3 A “side” shall mean the plaintiff (or related plaintiffs suing together) on the one hand, and the defendant 

(or related defendants sued together) on the other hand. In the event that the Court consolidates related 

cases for pretrial purposes, with regard to calculating limits imposed by this Order, a “side” shall be 

interpreted as if the cases were proceeding individually. For example, in consolidated cases the plaintiff 

may serve up to 30 interrogatories on each defendant, and each defendant may serve up to 30 

interrogatories on the plaintiff. 

4 For example, if a single technical expert submits reports on both infringement and invalidity, he or she 

may be deposed for up to 14 hours in total.

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interrogatories or categories of document production), the Court encourages the parties to 

provide their submission in a table format (also not more than 500 words per side), which 

identifies the disputed issues and specific relief requested.

Once the opposing party provides its response, the requesting party shall email the 

responsible law clerk (or the following email address if the assigned law clerk is not known: 

TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov) a combined email with the summary 

positions from both sides. Thereafter, the Court will provide guidance to the parties regarding 

the dispute, or arrange a telephonic hearing if the Court determines that additional argument 

would be of benefit.

PROTECTIVE ORDER

Pending entry of the final Protective Order, the Court issues the following interim Protective 

Order to govern the disclosure of confidential information:

If any document or information produced in this matter is deemed confidential by the 

producing party and if the Court has not entered a protective order, until a protective 

order is issued by the Court, the document shall be marked “confidential” or with some 

other confidential designation (such as “Confidential – Outside Attorneys’ Eyes Only”) 

by the disclosing party and disclosure of the confidential document or information shall 

be limited to each party’s outside attorney(s) of record and the employees of such outside 

attorney(s).

If a party is not represented by an outside attorney, disclosure of the confidential 

document or information shall be limited to one designated “in house” attorney, whose 

identity and job functions shall be disclosed to the producing party 5 days prior to any 

such disclosure, in order to permit any motion for protective order or other relief 

regarding such disclosure. The person(s) to whom disclosure of a confidential document 

or information is made under this OGP shall keep it confidential and use it only for 

purposes of litigating the case.

CLAIM CONSTRUCTION ISSUES

Terms for Construction. Based on the Court’s experience, the Court believes that it should 

have presumed limits on the number of claim terms to be construed. The “presumed limit” is the 

maximum number of terms that each side may request the Court to construe without further 

leave of Court. If the Court grants leave for additional terms to be construed, depending on the 

complexity and number of terms, the Court may split the Markman hearing into multiple

hearings.

The presumed limits based on the number of patents-in-suit are as follows:

Limits for Number of Claim Terms to be Construed

1-2 Patents 3-5 Patents More than 5 Patents

8 terms 10 terms 12 terms

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When the parties submit their joint claim construction statement, in addition to the term and the 

parties’ proposed constructions, the parties should indicate which party or side proposed that 

term, or if that was a joint proposal.

Claim Construction Briefing. The Court will require non-simultaneous claim construction 

briefing with the following default page limits; however, where exceptional circumstances 

warrant, the Court will consider reasonable requests to adjust these limits.5 These page limits 

shall also apply collectively for coordinated and consolidated cases; however, the Court will 

consider reasonable requests to adjust page limits in consolidated cases where circumstances 

warrant. In addition, the Court is very familiar with the law of claim construction and 

encourages the parties to forego lengthy recitations of the underlying legal authorities and 

instead focus on the substantive issues unique to each case. 

Unless otherwise agreed to by the parties, the default order of terms in the parties’ briefs shall be 

based on 1) the patent number (lowest to highest), the claim number (lowest to highest), and 

order of appearance within the lowest number patent and claim. An example order may be as 

follows:

1. 10,000,000 Patent, Claim 1, Term 1

2. 10,000,000 Patent, Claim 1, Term 2 (where Term 2 appears later in the claim than does 

Term 1)

3. 10,000,000 Patent, Claim 2, Term 3 (where Term 3 appears later in the claim than does 

Terms 2 and 3)

4. 10,000,001 Patent, Claim 1, Term 4

5. 10,000,001 Patent, Claim 3, Term 5

6. 10,000,002 Patent, Claim 2, Term 6

To the extent that the same or similar terms appear in multiple claims, those same or similar 

terms should be ordered according to the lowest patent number, lowest claim number, and order 

of appearance within the patent and claim.

Page Limits for Markman Briefs

Brief 1-2 Patents 3-5 Patents More than 5 Patents

Opening

(Defendant)

20 pages 30 pages 30 pages, plus 5 

additional pages for 

each patent over 5 up 

to a maximum of 45 

pages

Response

(Plaintiff)

20 pages 30 pages 30 pages, plus 5 

additional pages for 

each patent over 5 up 

to a maximum of 45 

pages

5 This OGP version shall apply retroactively to the Markman briefing in patent cases that are at least thirty 

(30) days before the filing of the opening Markman brief.

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Reply

(Defendant)

10 pages 15 pages 15 pages, plus 2 

additional pages for 

each patent over 5 up 

to a maximum of 21 

pages

Sur-Reply

(Plaintiff)

10 pages 15 pages 15 pages, plus 2 

additional pages for 

each patent over 5 up 

to a maximum of 21 

pages

Technology Tutorials and Conduct of the Markman Hearing

Technology tutorials are optional, especially in cases where a technical advisor has been 

appointed. If the parties choose to submit one, the tutorial should be in electronic form, with 

voiceovers, and submitted at least 10 days before the Markman hearing. In general, tutorials 

should be: (1) directed to the underlying technology (rather than argument related to 

infringement or validity), and (2) limited to 15 minutes per side. The tutorial will not be part of 

the record and the parties may not rely on or cite to the tutorial in other aspects of the litigation.

The Court generally sets aside one half day for the Markman hearing; however, the Court is open 

to reserving more or less time, depending on the complexity of the case and input from the 

parties. The Court will provide preliminary constructions to the parties ahead of the Markman

hearing. As a general rule, the party opposing the Court’s preliminary construction shall go first. 

If both parties oppose the Court’s preliminary construction, the Plaintiff shall typically go first.

GENERAL ISSUES

1. The Court will entertain reasonable requests to streamline the case schedule and discovery 

and encourages the parties to contact the Court’s law clerk when such interaction might help 

streamline the case.

2. To the extent the parties need to email the Court, the parties should use the following email 

address: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov. The parties should also 

be aware that the Court’s voicemail is not checked regularly so email is the preferred contact 

method and voicemails are not recommended.

3. The Court is generally willing to extend the response to the Complaint up to 45 days if 

agreed by the parties. However, longer extensions are disfavored.

4. Speaking objections during depositions are improper. Objections during depositions shall be 

stated concisely and in a nonargumentative and nonsuggestive manner. Examples of 

permissible objections include: “Objection, leading,” “Objection, compound,” “Objection, 

vague.” Other than to evaluate privilege issues, counsel should not confer with a witness 

while a question is pending. Counsel may confer with witnesses during breaks in a 

deposition without waiving any otherwise applicable privilege.

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5. Plaintiff must file a notice informing the Court when an IPR is filed, the expected time for an 

institution decision, and the expected time for a final written decision, within two weeks of 

the filing of the IPR.

6. With regard to any Motion to Transfer, the following page limits and briefing schedule shall 

apply: 

a. Opening – 15 pages

b. Response – 15 pages, due 14 days after the Opening brief

c. Reply – 5 pages, due 14 days after the Response brief

7. After the trial date is set, the Court will not move the trial date except in extreme situations. 

To the extent a party believes that the circumstances warrant continuing the trial date, the 

parties are directed to contact the Court’s law clerk.

8. The Court does not have a limit on the number of motions for summary judgment (MSJs), 

Daubert motions, or Motions in limine (MIL). However, absent leave of Court, the 

cumulative page limit for Opening Briefs for all MSJs is 40 pages per side, for all Daubert 

motions is 40 pages per side, and for all MILs is 15 pages per side. Responsive MSJ, 

Daubert, and MIL briefs are limited to the pages utilized in opening briefs or by the local 

rules, whichever is greater. Reply brief page limits shall be governed by the local rules.

9. For Markman briefs,6 summary judgment motions, and Daubert motions, the parties shall 

jointly deliver to Chambers one paper copy printed double-sided of the Opening, Response, 

and Reply briefs, omitting attachments, at least 10 days before the hearing. Absent 

agreement to the contrary, the Plaintiff shall be responsible for delivering a combined set of 

paper copies to chambers. Each party shall also provide an electronic copy of the briefs, 

exhibits, and the optional technology tutorial via USB drive. For Markman briefs, the parties 

should also include one paper copy of all patents-in-suit and the Joint Claim Construction 

Statement. To the extent the Court appoints a technical adviser, each party shall deliver the 

same to the technical adviser, also 10 days before the hearing. 

10. When filing the Joint Claim Construction Statement or proposed Protective Order, the parties 

shall also email the law clerk a Word version of the filed documents.

11. For all non-dispositive motions, the parties shall submit a proposed Order. The proposed 

Order shall omit the word “Proposed” from the title.

6 But if the Court appoints a technical adviser for claim construction, the parties do not need to provide a 

copy of the Markman briefs to the Court.

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12. Unless the Court indicates otherwise, the following Zoom information shall be used for all 

non-private hearings. The public is allowed to attend non-private hearings. 

https://txwd-uscourts.zoomgov.com/j/16057076711?pwd=WHljN0h3Yk03K3JLUTZ2a0tTMitPZz09

Meeting ID: 160 5707 6711

Password: 873559

One tap mobile: +16692545252,,16057076711#,,1#,873559# 

SIGNED this 8th day of October, 2021. 

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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APPENDIX A – EXEMPLARY SCHEDULE

7 The parties may amend preliminary infringement contentions and preliminary invalidity contentions 

without leave of court so long as counsel certifies that it undertook reasonable efforts to prepare its 

preliminary contentions and the amendment is based on material identified after those preliminary 

contentions were served, and should do so seasonably upon identifying any such material. Any 

amendment to add patent claims requires leave of court so that the Court can address any scheduling 

issues.

Deadline Item

7 days before CMC Plaintiff serves preliminary7 infringement contentions in the 

form of a chart setting forth where in the accused product(s) 

each element of the asserted claim(s) are found. Plaintiff shall 

also identify the earliest priority date (i.e. the earliest date of 

invention) for each asserted claim and produce: (1) all 

documents evidencing conception and reduction to practice 

for each claimed invention, and (2) a copy of the file history 

for each patent in suit.

2 weeks after CMC The Parties shall submit an agreed Scheduling Order. If the 

parties cannot agree, the parties shall submit a separate Joint 

Motion for entry of Scheduling Order briefly setting forth 

their respective positions on items where they cannot agree. 

Absent agreement of the parties, the Plaintiff shall be 

responsible for the timely submission of this and other Joint 

filings.

7 weeks after CMC Defendant serves preliminary invalidity contentions in the 

form of (1) a chart setting forth where in the prior art 

references each element of the asserted claim(s) are found, (2) 

an identification of any limitations the Defendant contends are 

indefinite or lack written description under section 112, and 

(3) an identification of any claims the Defendant contends are 

directed to ineligible subject matter under section 101. 

Defendant shall also produce (1) all prior art referenced in the 

invalidity contentions, and (2) technical documents, including 

software where applicable, sufficient to show the operation of 

the accused product(s).

9 weeks after CMC Parties exchange claim terms for construction.

11 weeks after CMC Parties exchange proposed claim constructions.

12 weeks after CMC Parties disclose extrinsic evidence. The parties shall disclose 

any extrinsic evidence, including the identity of any expert 

witness they may rely upon with respect to claim construction 

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8 Any party may utilize a rebuttal expert in response to a brief where expert testimony is relied upon by 

the other party.

or indefiniteness. With respect to any expert identified, the 

parties shall identify the scope of the topics for the witness’s 

expected testimony.

8

 With respect to items of extrinsic 

evidence, the parties shall identify each such item by 

production number or produce a copy of any such item if not 

previously produced.

13 weeks after CMC Deadline to meet and confer to narrow terms in dispute and 

exchange revised list of terms/constructions.

14 weeks after CMC Defendant files Opening claim construction brief, including 

any arguments that any claim terms are indefinite.

17 weeks after CMC Plaintiff files Responsive claim construction brief. 

19 weeks after CMC Defendant files Reply claim construction brief.

21 weeks after CMC Plaintiff files a Sur-Reply claim construction brief.

3 business days after 

submission of sur-reply

Parties submit Joint Claim Construction Statement. 

See General Issues Note #9 regarding providing copies of the 

briefing to the Court and the technical adviser (if appointed).

22 weeks after CMC (but 

at least 10 days before 

Markman hearing)

Parties submit optional technical tutorials to the Court and 

technical adviser (if appointed).

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23 weeks after CMC (or as 

soon as practicable)

Markman Hearing at 9:00 a.m. This date is a placeholder and 

the Court may adjust this date as the Markman hearing 

approaches.

1 business day after 

Markman hearing

Fact Discovery opens; deadline to serve Initial Disclosures per 

Rule 26(a).

6 weeks after Markman

hearing

Deadline to add parties.

8 weeks after Markman

hearing

Deadline to serve Final Infringement and Invalidity 

Contentions. After this date, leave of Court is required for 

any amendment to infringement or invalidity contentions. 

This deadline does not relieve the parties of their obligation to 

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seasonably amend if new information is identified after initial 

contentions. 

16 weeks after Markman

hearing

Deadline to amend pleadings. A motion is not required unless 

the amendment adds patents or patent claims. (Note: This 

includes amendments in response to a 12(c) motion.)

26 weeks after Markman Deadline for the first of two meet and confers to discuss 

significantly narrowing the number of claims asserted and 

prior art references at issue. Unless the parties agree to the 

narrowing, they are ordered to contact the Court’s Law Clerk 

to arrange a teleconference with the Court to resolve the 

disputed issues.

30 weeks after Markman

hearing

Close of Fact Discovery.

31 weeks after Markman

hearing 

Opening Expert Reports.

35 weeks after Markman

hearing

Rebuttal Expert Reports.

38 weeks after Markman

hearing

Close of Expert Discovery.

39 weeks after Markman

hearing

Deadline for the second of two meet and confers to discuss 

narrowing the number of claims asserted and prior art 

references at issue to triable limits. To the extent it helps the 

parties determine these limits, the parties are encouraged to 

contact the Court’s Law Clerk for an estimate of the amount 

of trial time anticipated per side. The parties shall file a Joint 

Report within 5 business days regarding the results of the 

meet and confer.

40 weeks after Markman

hearing

Dispositive motion deadline and Daubert motion deadline.

See General Issues Note #9 regarding providing copies of the 

briefing to the Court and the technical adviser (if appointed).

42 weeks after Markman

hearing

Serve Pretrial Disclosures (jury instructions, exhibits lists, 

witness lists, discovery and deposition designations).

44 weeks after Markman

hearing 

Serve objections to pretrial disclosures/rebuttal disclosures.

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10 If the actual trial date materially differs from the Court’s default schedule, the Court will consider 

reasonable amendments to the case schedule post-Markman that are consistent with the Court’s default 

deadlines in light of the actual trial date.

45 weeks after Markman

hearing

Serve objections to rebuttal disclosures; file Motions in 

limine.

46 weeks after Markman

hearing

File Joint Pretrial Order and Pretrial Submissions (jury 

instructions, exhibits lists, witness lists, discovery and 

deposition designations); file oppositions to motions in limine

47 weeks after Markman

hearing

File Notice of Request for Daily Transcript or Real Time 

Reporting. If a daily transcript or real time reporting of court 

proceedings is requested for trial, the party or parties making 

said request shall file a notice with the Court and e-mail the 

Court Reporter, Kristie Davis at kmdaviscsr@yahoo.com

Deadline to meet and confer regarding remaining objections 

and disputes on motions in limine. 

8 weeks before trial Parties email the Court’s law clerk to confirm pretrial and trial 

dates

3 business days before 

Final Pretrial Conference.

File joint notice identifying remaining objections to pretrial 

disclosures and disputes on motions in limine.

49 weeks after Markman

hearing (or as soon as 

practicable)

Final Pretrial Conference. 

52 weeks after Markman

hearing (or as soon as 

practicable)10

Jury Selection/Trial. 

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