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Automatic Equipment Manufacturing Co. v. Danko Manufacturing, LLC

United States District Court, D. Nebraska

August 21, 2019

AUTOMATIC EQUIPMENT MANUFACTURING COMPANY, d/b/a BLUE OX, a Nebraska company, Plaintiff/Counter Defendant,
v.
DANKO MANUFACTURING, LLC, a Colorado limited liability company, Defendant/Counter Claimant.

          ORDER

          Michael D. Nelson. United States Magistrate Judge

         This matter is before the Court following its review of the parties' Rule 26(f) Report (Filing No. 14) and a telephone conference held with counsel for the parties on August 21, 2019. In accordance with the matters discussed at the telephone conference, IT IS ORDERED that the schedule for the first phase of discovery is as follows:

         1. The deadline for serving initial mandatory disclosures under Rule 26(a)(1) is August 15, 2019

         2. The deadline for moving to amend pleadings or add parties is August 30, 2019.

         3. Defendant's Disclosure of Asserted Claims and Infringement Contentions and accompanying document production is due September 6, 2019.

         a) Defendant's contentions shall contain the following information:

i. Each claim of each patent in suit that is allegedly infringed by the Plaintiff, including for each claim the applicable statutory subsections of 35 U.S.C. § 271 asserted;
ii. Separately for each asserted claim, each accused apparatus, product, device, process, method, act, or other instrumentality (“Accused Instrumentality”) of the Plaintiff of which the Defendant is aware. This identification shall be as specific as possible. Each product, device, and apparatus must be identified by name or model number, if known. Each method or process shall be identified by name, if known, or by any product, device, or apparatus which, when used, allegedly results in the practice of the claimed device, method or process;
iii. A chart identifying specifically where and how each limitation of each asserted claim is found within each Accused Instrumentality, including for each limitation that such party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed function;
iv. For each claim which is alleged to have been indirectly infringed, an identification of any direct infringement and a description of the acts of the alleged indirect infringer that contribute to or are inducing that direct infringement. Insofar as alleged direct infringement is based on joint acts of multiple parties, the role of each such party in the direct infringement must be described.;
v. Whether each element of each asserted claim is alleged to be literally present or present under the doctrine of equivalents in the Accused Instrumentality;
vi. For any patent that claims priority to an earlier application, the priority date to which each asserted claim allegedly is entitled;
vii. If a party claiming patent infringement wishes to preserve the right to rely, for any purpose, on the assertion that its own or its licensee's apparatus, product, device, process, method, act, or other instrumentality practices the claimed invention, the party shall identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim;
viii. Identify the timing of the point of first infringement, the start of claimed damages, and the end of claimed damages; and
ix. If a party claiming patent infringement alleges willful infringement, the basis for such allegation.

         b) Accompanying document production should include the following, to the extent such documents are in Defendant's possession, custody or control:

i. Documents (e.g., contracts, purchase orders, invoices, advertisements, marketing materials, offer letters, laboratory and/or field testing agreements, and third party or joint development agreements) sufficient to evidence each discussion with, disclosure to, or other manner of providing to a third party, or sale of or offer to sell, or any public use of the claimed invention prior to the date of application for the patents-in-suit, or the claimed priority date, whichever is earlier;[1]
ii. All documents evidencing the conception, reduction to practice, design and development of each claimed invention, which were created on or before the date of application for the patents-in-suit or ...

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