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United States District Court

Western District of Texas

Waco Division

SITO Mobile R&D IP,

SITO Mobile, Ltd.,

v. 

FloSports, Inc.

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CIVIL ACTION NO. 6:20-CV-471-ADA

JUDGE ALBRIGHT 

ORDER GOVERNING PROCEEDINGS – PATENT CASE

This Order shall govern proceedings in this case. The following deadlines are hereby set:

1. This case is SET for a telephonic Rule 16 Case Management Conference on Thursday, 

September 3, 2020 at 1:30 p.m. Participants shall dial into the following number 5 

minutes before the scheduled time: 866.434.5269; access code 967-8090. Lead counsel 

for each party, and all unrepresented parties, shall be present. Client representatives are 

welcome to attend, but such attendance is not required. In person attendance is permitted, 

but not required. Anyone planning to attend in person should so inform the Court by 

contacting chambers not later than two court days before the scheduled hearing so the 

Court can evaluate whether to hold the conference in the courtroom, or in chambers. The 

Court expects the parties to be prepared to discuss:

a. an overview of the claims and defenses, including any unique issues the parties

believe should be addressed at this stage of the case;

b. issues involving the case schedule and potential amendments to the Court’s default 

scheduling order, including the date for the Markman Hearing;

c. issues relating to claim construction, including whether a live tutorial would be of

benefit to the Court;

d. issues relating to discovery, including potential amendments to the Court’s default

discovery limits or Protective Order; and,

e. any other issues the parties believe would lead to the just, speedy and inexpensive

determination of this action.

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 

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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. (Not later than 3 business days before the CMC). Lead counsel for each party shall meet

and confer (either in person or by telephone), to discuss whether they believe the Court’s

default Scheduling Order and default Discovery Limits are appropriate for this case, and

any issues relating to the management of this case they intend to raise at the CMC.

4. (Two weeks after the 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 each

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.

5. (Two weeks after the CMC). Deadline for Motions to Transfer. The Court also adopts

the following page limits and briefing schedule for Motions to Transfer:

a. Opening – 15 pages

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

c. Reply – 5 pages, due 7 days after the Response brief

6. (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), and (3) summary, annual sales

information for the accused product(s) for the two years preceding the filing of the

Complaint,1unless the parties agree to some other timeframe.

DISCOVERY

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

discovery is 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.

1 With regard to expired patents, the sales information shall be provided for the two years preceding expiration.

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With respect to venue and jurisdictional discovery, the Court generally grants leave for the 

parties to conduct targeted discovery (including, but not limited to requests for production, 

interrogatories, and depositions) with regard to motions to transfer venue or motions to dismiss 

based on lack of jurisdiction. If the parties disagree as to what reasonable discovery limits are, 

the Court encourages the parties to contact the Court to request a telephonic discovery hearing.

Following the Markman hearing, the following discovery limits will apply to this case. The 

Court will consider reasonable requests to adjust these limits should circumstances warrant.

1. Interrogatories: 30 per side2

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 report3

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 chambers to schedule a call with 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 (with opposing counsel) to arrange a telephone conference with the Court to 

summarize the dispute and the parties respective positions. After hearing from the parties, the 

Court will determine if further briefing is required.

PROTECTIVE ORDER

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

Order to govern the disclosure of confidential information in this matter:

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 

2 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. 

3 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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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 local rule 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 the parties may request the Court to construe without further 

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

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

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

10 terms 12 terms 15 terms

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 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. These page limits shall also apply 

collectively for 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 by the parties, all simultaneous filings will take place at 5:00 p.m. CT.

Page Limits for Markman Briefs

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

Opening 20 pages 30 pages 30 pages, plus 5 

additional pages for 

each patent over 5 up 

to a maximum of 45 

pages

Response 20 pages 30 pages 30 pages, plus 5 

additional pages for 

each patent over 5 up 

to a maximum of 45 

pages

Reply 10 pages 15 pages 15 pages, plus 2 

additional pages for 

each patent over 5 up 

to a maximum of 21 

pages

Conduct of the Markman Hearing. 

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 requires submission of technology tutorials in advance of the Markman

hearing when they may be of benefit. The parties may submit tutorials in electronic form not 

later than one week before the Markman hearing and the Court encourages the parties to aim for 

tutorials with voiceovers in the 15 minute range. If a party intends to present a live tutorial, the 

parties should contact the Court to set-up a Zoom or telephonic tutorial to occur at least a week 

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. For the Court’s convenience, the tutorial may be recorded, but will not be part 

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

The Court will consider the parties suggestions on the order of argument at the Markman

hearing. However, if the parties do not suggest a different procedure, the Court will allow the 

Plaintiff to pick the first term and then alternate by term. As a general rule, if one side proposes 

“plain and ordinary meaning” as its construction or asserts that a term is indefinite, the other 

party shall go first.

GENERAL ISSUES

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

however, absent leave of Court, the cumulative page limit for Opening Briefs for all MSJs is 

40 pages per side.

2. There may be instances where the submission of substantive briefs via audio file will be of 

help to the Court. If a party is contemplating submitting a brief via audio file it should 

contact the Court for guidance on whether it would be helpful to the Court. However, the 

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Court has determined that audio recordings of Markman briefs are of limited value and those 

need not be submitted. The recordings shall be made in a neutral fashion, shall be verbatim 

transcriptions without additional colloquy (except that citations and legal authority sections 

need not be included), and each such file shall be served on opposing counsel. The Court 

does not have a preference for the manner of recording and has found automated software 

recordings, as well as attorney recordings, to be more than satisfactory. Audio files shall be 

submitted via USB drive, Box (not another cloud storage), or email to the law clerk (with a 

cc to opposing counsel) and should be submitted in mp3 format.

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

and encourages the parties to contact the Court’s law clerk (with opposing counsel) to

arrange a call with the Court when such interaction might help streamline the case.

4. 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 and will require good

cause.

5. For Markman briefs, summary judgment motions, and Daubert motions, each party shall

deliver to Chambers one (1) paper copy of its Opening, Response, and Reply Briefs, omitting

attachments, no later than one week after the last-filed brief or at least a week before the

hearing, whichever is earlier.

6. 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.

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

address: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov.

ORDERED this 21st day of August, 2020. 

 ______________________________

 ALAN D ALBRIGHT

 UNITED STATES DISTRICT JUDGE

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APPENDIX A – DEFAULT SCHEDULE

4 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 preliminary4infringement 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 Deadline for Motions to Transfer. 

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, (2) technical documents, including 

software where applicable, sufficient to show the operation of 

the accused product(s), and (3) summary, annual sales 

information for the accused product(s) for the two years 

preceding the filing of the Complaint, unless the parties agree 

to some other timeframe.

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 

or indefiniteness. With respect to any expert identified, the 

parties shall also provide a summary of the witness’s expected 

testimony including the opinions to be expressed and a 

general description of the basis and reasons therefor. A 

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5 To the extent a party wishes to use cloud storage, the parties should contact the law clerk to request a Box link so 

that the party can directly upload the file to the Court’s Box account.

failure to summarize the potential expert testimony in a good 

faith, informative fashion may result in the exclusion of the 

proffered testimony. 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 Parties file Opening claim construction briefs, including any 

arguments that any claim terms are indefinite.

17 weeks after CMC Parties file Responsive claim construction briefs. 

19 weeks after CMC Parties file Reply claim construction briefs.

20 weeks after CMC Parties submit Joint Claim Construction Statement. In 

addition to filing, the parties shall jointly submit, via USB 

drive, Box (not another cloud storage),5or email to the law 

clerk, pdf versions of all as-filed briefing and exhibits. Each 

party shall deliver to Chambers paper copies of its Opening, 

Response , and Reply Markman Briefs, omitting attachments. 

Absent agreement of the parties, the Plaintiff shall be 

responsible for the timely submission of this and other Joint 

filings.

23 weeks after CMC (but 

at least 1 week before 

Markman hearing)

Parties submit optional technical tutorials. The parties shall 

also jointly submit, via USB drive, Box (not another cloud 

storage), or email to the law clerk, pdf versions of all as-filed 

briefing and exhibits. 

24 weeks after CMC (or as 

soon as practicable)

Markman Hearing at [9:00 a.m. or 1:00 p.m.]

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. 

12 weeks after Markman 

hearing

Deadline to amend pleadings. A motion is not required unless 

the amendment adds patents or patent claims.

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 confer 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.

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.

45 weeks after Markman 

hearing

Serve objections to rebuttal disclosures and File Motions in 

limine.

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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.

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. 

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. The Court expects to set this date 

at the conclusion of the Markman Hearing.

52 weeks after Markman 

hearing (or as soon as 

practicable)6

Jury Selection/Trial. The Court expects to set these dates at 

the conclusion of the Markman Hearing.

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