New Cases

New This Week (November 23, 2021)

Menu: Scheduling/Case Management | Discovery | Patent Specific Hearings/Motions | Mediation/Settlement Conferences | Trial

Scheduling/Case Management 

District of Massachusetts (Boston)

Chief Judge F. Dennis Saylor, IV

Abiomed, Inc. v. Maquet Cardiovascular, LLC The U.S. District Court for the District of Massachusetts in Boston issued a Memorandum and Order on [Defendant’s] Motion To Redact Oral Argument Hearing Transcripts, denying in part and granting in part the request. As part of its analysis the Court indicated that the motion will not be denied on the basis that the matters were discussed in open court since the hearing at issue was conducted by videoconference due to the COVID-19 pandemic, and it may be the case that defendant did not realize that anyone other than the parties’ attorneys were on the conference. (Case No. 1:16-cv-10914; November 5, 2021).

Eastern District of Texas (Marshall Division)

Magistrate Judge Roy S. Payne

National Oilwell DHT, LP v. Amega West Services, LLC. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted plaintiff’s Unopposed Motion to Substitute Technical Expert, because “due to Covid-19 [the expert] discontinued his consulting business and now works in a different profession.” The expert’s new employer said he could not continue to serve as the plaintiff’s technical expert because of “the time and travel burden occasioned by deposition and trial testimony, including necessary preparation.” (Case No. 2:14-cv-01020, presiding before Chief District Judge J. Rodney Gilstrap; October 20,  2021).

District of Utah (Central Division—Salt Lake City)

Chief District Judge Robert J. Shelby

C.R. Bard, Inc., et al. v. Medical Components, Inc. – The U.S. District Court for the District of Utah’s Central Division in Salt Lake City issued a Memorandum Decision And Order Certifying Claims Under Rule 54(b), certifying for immediate appeal under Federal Rule of Civil Procedure 54(b) the court’s recent Summary Judgment Orders, which found all asserted patents in the case invalid as patent ineligible. The Court rejected defendant’s argument that it would be more efficient to conduct a bench trial on inequitable conduct prior to appeal, finding that withholding the  certification likely would result in a ten-to-twelve-month delay in resolving patent validity issues important in several pending cases in multiple district courts. As part of its analysis, the Court noted that “the court’s calendar and the ongoing pandemic would adversely impact the time to resolution.”  The Court further indicated that “the concerning state of the pandemic in the District of Utah continues to present significant health risks (especially with evidentiary hearings) and impair the court’s efficiency in many ways.” (Case No. 2:12-cv-00032; November 4, 2021).

Discovery

District of Delaware (Wilmington)

District Judge Stephanos Bibas

TexasLDPC Inc. v. Broadcom Inc. et al. – The U.S. District Court for the District of Delaware issued an Order regarding the scope of a protective order addendum, adopting defendants’ proposed language regarding possible COVID-19 pandemic impact on review of source code. The Court rejected plaintiff’s argument that COVID-19 restrictions may interfere with in-person review in the future requiring remote access review of source code, because the Court found that plaintiff did not show “that it cannot travel now, just that it may not be able to travel in the future.” The Court referred to in-person review as the “gold standard” to protect confidential source code, ruling that there is no need for remote review at this time, and it would reconsider if the need arises. The language adopted in the Source Code Addendum To Protective Order stated that “[i]n the event that governmental or medical restrictions on business operations, such as work from home orders, travel restrictions, or quarantine requirements, preclude persons covered by this Protective Order from complying with the inspection procedure specified in paragraph 39, the parties agree that the Receiving Party reserves the right to seek modification of this order.” (Case No. 1:18-cv-01966; November 2, 2021).

 

 

Western District of Pennsylvania (Pittsburgh)

Senior District Judge Joy Flowers Conti

Sherwin-Williams Company v. PPG Industries, Inc.– The U.S. District Court for the Western District of Pennsylvania in Pittsburgh granted defendant’s motion to compel updated damages discovery about a potential non-infringing alternative product for its lost profit and reasonable royalty analysis. The Court had previously granted partial summary judgement to prevent the defendant’s damages expert from using the product in the proposed manner based upon a lack of factual evidence in the record, which had been limited to the period prior to Q2 2018. The Court found that its prior decisions did not resolve the current motion, however, because the court’s summary judgment and Daubert decisions did not address supplemental damages discovery or the period post-Q2 2018. The Court noted that it is now three years after the close of fact discovery, and “unfortunately, due to the Covid-19 pandemic, the trial has been continued and is not imminent.” The parties were found to have a duty to supplement damages discovery, even beyond the close of fact discovery, and the existence of non-infringing alternative products is relevant to the damages analysis. The Court further found that there will be no real prejudice, given the “unavoidable delay of the trial, the parties’ resources, and their litigious approach to the litigation.” The Court ruled that neither party’s expert may refer to the product as a non-infringing alternative prior to Q2 2018, based on the Court’s prior determinations, but if the market has changed since then “damages should be based on economic reality; not a market arbitrarily frozen in time by the original close of fact discovery in [the] litigation.” On October 27, 2021, the Court issued a number of rulings on MILs related to supplemental damages discovery. The Court acknowledged that the trial, which is now scheduled to commence in January 2022, had been delayed due to the COVID-19 pandemic and supplemental discovery had previously been granted with respect to the period post-Q2 2018, but it made clear that “[n]either side will be permitted a second bite at the apple with respect to the original damages period.” (Case No. 2:17-cv-01023; February 18, 2021 and October 27, 2021).

Eastern District of Texas (Sherman Division)

Magistrate Judge Christine A. Nowak

United Services Automobile Association v. PNC Bank, NA – The U.S. District Court for the Eastern District of Texas’s Sherman Division issued an Order Re: “Hotline” Hearing Pursuant To Local Tule CV-26(e), sustaining in part plaintiff’s objection to defendant’s counsel being present in-person at the deposition of a third party witness that was noticed by plaintiff’s counsel to proceed remotely. The Court ruled that defendant’s counsel must participate in the deposition via remote means during plaintiff’s counsel’s examination, but may appear in person and in the same room as the witness during his own questioning of the witness. The Court further instructed the parties to meet and confer in advance of additional depositions, and provide notice of whether attendance will be remote, in person, or hybrid.   (Case No. 2:20-cv-00319, presiding before Chief Judge Rodney Gilstrap; November 17, 2021).

Western District of Texas (WACO)

District Judge Alan D. Albright

Unification Technologies LLC v. Micron Technology, Inc. et al.- The U.S. District Court for the Western District of Texas in Waco issued a Request For International Judicial Assistance (Letter Rogatory) to the judicial authorities of Taiwan to obtain evidence. Due to difficulties of international travel during the COVID-19 pandemic, the Court requested that defendants be ordered to produce source code for inspection. (Case No. 6:20-cv-00500; November 1, 2021).

 

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Patent Specific Hearings/Motions

Southern District of California (San Diego)

District Judge Cynthia Bashant

Echologics, LLC et al v. Orbis Intelligent Systems, Inc. – The U.S. District Court for the Southern District of California in San Diego denied defendant’s Motion To Transfer Venue to the District of Delaware pursuant to 28 U.S.C. § 1404(a), finding that defendant failed to meet its burden to show the balance of factors favor transfer. As part of its analysis of the convenience of witness factor, the Court considered, among other witnesses, the convenience to the founder and CTO of the defendant who typically resides in San Diego but has been “spending most of his time in England during the pandemic.” Although the plaintiff speculated that “the pandemic’s negative influence on travel plans will lessen during [the] litigation and . . . [the witness] is likely to return to San Diego permanently during [the] litigation”, the Court found that the defendant was in a better position to identify his residency.  With respect to the relative congestion and time to trial factor, the Court found the factor neutral since “all courts are experiencing some degree of congestion due to the ongoing pandemic.” (Case No. 3:21-cv-01147; November 9, 2021). 

District of New Jersey (Trenton)

District Judge Brian R. Martinotti

Melinta Therapeutics, LLC et al v. Nexus Pharmaceuticals, Inc. – The U.S. District Court for the District of New Jersey in Trenton granted in part and denied in part defendant’s Motion to Dismiss and to Transfer Venue, transferring all counts to the Northern District of Illinois pursuant to 28 U.S.C § 1404. The Court refused to invoke pendent venue over the two patent counts, as requested by the plaintiffs, further finding that plaintiffs failed to meet their burden with respect to the patent counts because they did not assert venue under § 1400(b). Plaintiffs’ non-patent count seeks declaratory judgment that defendant’s attempted delivery of a Notice Letter did not commence the 45-day window for plaintiffs to file suit to obtain a 30-month stay of FDA approval of defendant’s ANDA, because the COVID-19 pandemic had caused plaintiffs to close their corporate offices to the public and implement a remote work policy which led to a delay in the discovery of the notice by the general counsel. The Court acknowledged that the declaratory judgment count does relate to Hatch-Waxman and patent infringement, but found it is not, in fact, a patent infringement claim. After refusing to invoke pendent jurisdiction over the patent counts based on the declaratory judgment count, the Court decided to transfer the patent counts to the district of incorporation of the defendants and transfer the “closely intertwined” declaratory judgment there as well. (Case No. 2:21-cv-11198; November 5, 2021).

Western District of Texas (Waco)

District Judge Alan D. Albright

Bluebonnet Internet Media Services, LLC v. Pandora Media, LLC - The U.S. District Court for the Western District of Texas in Waco denied defendants’ Motion To Transfer Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas to the Northern District of California, finding that the defendant failed to meet its “heavy burden” of showing that the Northern District of California is a “clearly more convenient venue warranting transfer.” In finding the administrative difficulties public-interest factor to be neutral, the Court noted that “the trial backlog in NDCA caused by courthouse closures due to the COVID-19 pandemic beginning in March 2020 would make the time to trial for patent cases, and all cases in general, even longer.” It contrasted this to the Western District of Texas which conducted its first patent jury trial during the COVID-19 pandemic in October 2020, and has since conducted at least seven jury trials, six of which are patent jury trials including five patent jury trials in the Waco courthouse in the first half of 2021 alone. On October 21, 2021, the Court issued an Order transferring the case to the Northern District of California, pursuant to the Federal Circuit’s order granting defendant’s petition for writ of mandamus. (Case No. 6:20-cv-00731; July 22, 2021 and October 21, 2021).

Broadband iTV, Inc. v. DISH Network LLC -- The U.S. District Court for the Western District of Texas in Waco denied defendant’s Motion To Transfer Venue under 28 U.S.C.§ 1404(a) from the Waco Division of the Western District of Texas to the District of Colorado, or in the alternative, to the Austin Division of the Western District of Texas.  As part of its analysis of the factor regarding administrative difficulties flowing from court congestion, the Court considered the time to trial noting that the average time to trial in Colorado for patent cases was over 40 months (pre-COVID-19 pandemic) while the trial in Texas is anticipated to held about 52 weeks after the Markman hearing.  The Court also found that defendant did not provide any evidence that the scheduling of this case has been impacted by the COVID-19 pandemic, noting that the Markman hearing was held on November 13, 2020 in the middle of the pandemic, and the Court “has demonstrated its capability of conducting in-person jury trials in a safe and efficient manner in the COVID-19 pandemic . . . [holding] its first patent jury trial in October 2020 . . . [and] three more in-person jury trials in the first quarter of 2021.” And, without evidence that the District of Colorado is fully open to this date or is capable of safely holding in-person jury trials in the pandemic, the Court found that a transfer to the District of Colorado would cause greater delay. With respect to the alternative request for intra-district transfer, the Court denied the request without prejudice indicating that the Austin courthouse remains closed due to the Covid-19 pandemic, and it is not clear whether it will be open for jury trial in the near future. The Court did instruct defendant that it may refile its Motion to Transfer to the Austin Division if circumstances change when it comes close to the trial. On September 3, 2021, the Court denied defendant’s Motion for Reconsideration which was filed after the Federal Circuit denied its petition for a writ of mandamus but suggested that the Court “should ‘reconsider its determination in light of the appropriate legal standard’ for transfer factors . . .”  The Court reconsidered its previous Section 1404 transfer factor analyses in light of the Federal Circuit’s guidance in the Mandamus Order and appropriate legal standard as clarified in the Apple and Samsung cases, but still ruled that defendant did not meet its “significant burden” to show the District of Colorado is “clearly more convenient”, finding two factors strongly weigh against transfer, including court congestion, one factor strongly favors transfer, and the remaining factors were neutral. On October 22, 2021, the Court issued an Order transferring the case to the District of Colorado, pursuant to the Federal Circuit’s order granting defendant’s petition for writ of mandamus. (Case No. 6:19-cv-00716; April 20, 2021, September 3, 2021 and October 22, 2021).

Ravgen, Inc. v. Quest Diagnostics Incorporated - The U.S. District Court for the Western District of Texas in Waco denied defendants’ Motion To Transfer Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas to the Central District of California, finding that the defendant failed to meet its “significant burden” to demonstrate that the Central District of California is “clearly more convenient” than the Western District of Texas. In finding the administrative difficulties flowing from court congestion public-interest factor weighed strongly against transfer, the Court noted that “the median time to trial for patents cases in this Court (the Waco Division) is over 10 months shorter than the 33.6-month median time to trial for patent cases in the CDCA,” while further noting that “the trial backlog in the CDCA caused by courthouse closures due to the COVID-19 pandemic beginning in March 2020 would make the time to trial for patent cases, and all cases in general, even longer.” It contrasted this to the Western District of Texas which conducted its first patent jury trial during the COVID-19 pandemic in October 2020, and has since conducted at least seven jury trials, six of which are patent jury trials including five patent jury trials in the Waco courthouse in the first half of 2021 alone. On November 15, 2021, the Court issued an Order Transferring Case To The Central District Of California, transferring the case pursuant to the Federal Circuit’s November 10, 2021 order granting defendant’s petition for writ of mandamus. (Case No. 6:20-cv-00972; August 20, 2021 and November 15, 2021).

 

Super Interconnect Technologies LLC v. Google LLC The U.S. District Court for the Western District of Texas in Waco denied defendants’ Motion To Transfer Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas to the Northern District of California, finding that the balance of the Volkswagen test weighs against transfer with no factors favoring transfer, two factors weighing against and the other remaining factors found to be neutral. As part of its analysis, the Court considered the average time to trial and found that the difference between the Western District of Texas and Northern Districts of California could be much longer than 12 months.  The Court pointed out that “the trial backlog in NDCA caused by courthouse closures due to the COVID-19 pandemic beginning in March 2020 would make the time to trial for patent cases, and all cases in general, even longer.” The Court noted that, in contrast, it “conducted its first patent jury trial during the COVID-19 pandemic in October 2020, and has since conducted at least seven jury trials, six of which are patent jury trials . . . [and] in the first half of 2021 alone [it] had already conducted five patent jury trials in the Waco courthouse.” On November 5, 2021, the Court issued an Amended Order Granting Defendant’s Motion To Transfer, granting the motion to transfer and vacating the prior denial after the Federal Circuit provided new and additional guidance regarding certain factors relevant to the motion. The Court found that three of the eight factors were neutral, two factors weigh against transfer, three factors weigh in favor of transfer, and that “an in-depth look at the analysis of the factors above shows that the NDCA is a clearly more convenient venue.” In analyzing the “court congestion” factor, the Court considered the same time to trial comparison as previously finding again that the factor weighs against transfer, but taking direction from the Federal Circuit, the Court gave the factor less weight. (Case No. 6:21-cv-00259; September 15, 2021 and November 5, 2021).

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Mediation/Settlement Conferences

District of Delaware (Wilmington)

Magistrate Judge Jennifer L. Hall

Best Medical International, Inc. v. Varian Medical Systems, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington entered an Order Governing Mediation Conference and Mediation Statements, scheduling the Conference for October 2, 2020 at 10:00 a.m., at which time “[a]ll required participants are to report at this time by video conference and to remain available until excused by the Court.” The Order states that “[c]ounsel shall arrange three separate video conference lines to use throughout the mediation process when the mediation begins: (i) a dedicated line for Plaintiffs; (ii) a dedicated line for Defendants; and (iii) a joint line available for both sides should the Judge wish to have discussions with all parties. All lines should remain open for use by counsel and the Court until the mediation is concluded.” On August 20, 2021, the Court issued an Order scheduling the mediation conference to reconvene on October 12, 2021 at 1:00 p.m. via video conference.  The Court also indicated that the previous Order governing mediation remains in effect. (Case No. 1:18-cv-01599, presiding before District Judge Maryellen Noreika; August 20, 2020 and August 20, 2021).

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Trial

Central District of California (Southern Division—Santa Ana)

District Judge David O. Carter

Pinn, Inc. v. Apple Inc. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana reset the jury trial for September 14, 2021 at 9:00 a.m. (PDT) and the pretrial conference for June 14, 2021 at 8:30 a.m. (PDT), after discussing with counsel the Court's schedule and the “expected availability of a jury venire.” On September 3, 2021, the Court continued the jury trial to September 28, 2021 at 8:30 a.m. During a status conference held on September 10, 2021, the Court continued the trial to October 26, 2021 at 8:30 a.m. On October 20, 2021, the Court issued a Scheduling Notice continuing the jury trial date to January 5, 2022 at 8:30 a.m. (Case No. 8:19-cv-01805; March 3, 2021, September 3, 2021, September 10, 2021 and October 20, 2021).

Northern District of California (San Francisco Division)

District Judge William H. Orrick

Illumina, Inc. et al v. BGI Genomics Co., Ltd et al. – The U.S. District Court for the Northern District of California in San Francisco issued Rulings Following The Pretrial Conference, ruling on a number of pending motions. As part of the rulings, the Court granted plaintiffs’ MIL to exclude evidence and argument of negative impacts of a verdict against defendant and use of defendants’ products for COVID-19 pandemic related purposes. The Court denied the MIL as to discussion of defendants’ COVID-related products as background and defendants’ rebuttal to potential arguments about the negative impacts of moving its research and development outside the United States. The Court noted that plaintiff may offer evidence in rebuttal if defendants introduces evidence about COVID-related products. The parties were reminded “to stick to the core issues in this case, which do not include whether [defendants are] linked to the Chinese government” or developing COVID-relief inventions, (Case No. 3:19-cv-03770; October 27, 2021).

District of Delaware (Wilmington)

District Judge Colm F. Connolly

Boston Scientific Corp. et al. v. Nevro Corp – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order indicating that the pretrial conference was to be held by telephone on October 19, 2021. On November 1, 2021, the District of Delaware jury returned its verdict, finding that two of the asserted claims of the patents-in-suit were directly infringed, two claims were shown to be indirectly and willfully infringed and two claims were not proven to be infringed based on active inducement,  the asserted claims were not proven invalid by clear and convincing evidence, and that plaintiff was entitled to a reasonable royalty amount of $20 Million in damages.  (Case No. 1:16-cv-01163; October 19, 2021 and November 1, 2021).

District Judge Leonard P. Stark

Sunoco Partners Marketing & Terminals LP v. Powder Springs Logistics, LLC, et al. – The U.S. District Court for the District of Delaware in Wilmington sua sponte ordered the parties to submit a joint status report whether the trial, scheduled to begin on July 20, 2020, could proceed in light of the COVID-19 pandemic. In particular, the parties were directed to meet and confer and submit a joint status report, “advising the Court of their views on, among other things: (i) whether they believe trial can and should proceed on July 20; (ii) whether they believe they have a right to a jury trial and, if so, whether they are willing to waive that right in favor of a bench trial; and (iii) whether, if the trial proceeds on July 20, any witnesses might request to appear by video or other remote technology rather than travel to the courtroom.” The Court will hold a status teleconference on July 15 at 11 a.m. (EDT). The trial is scheduled to begin on August 3, 2020 and the pretrial conference is scheduled for July 27, 2020 at 2 p.m. (EDT). After giving “due consideration to the parties’ input and preferences, as well as the physical and staff limitations of the courtroom and courthouse, and mindful of its utmost duty to take all reasonable precautions to protect the health and safety of the citizens who will be called as jurors, the Court [] decided to impose the type of restrictions on in-court participation it was contemplating in its questions to the parties.”  In particular, the August jury trial will be conducted with no live witnesses testifying in the courtroom, limitations on the representatives in the courtroom for the parties, a simulcast videp feed into another room in the courthouse providing access to interested members of the public and press and other trial members who are not using one of the allotted courtroom slots, and any other special arrangements needed to be made with the Court’s staff to allow the trial to take place partially-remotely, including taking all “necessary steps to eliminate paper exhibits (i.e., absent compelling reason, all exhibits shall be displayed to witnesses and the jury electronically.)” The Court further indicated that it was “working with a District-wide committee to develop protocols for jury selection and for allowing the jury, Court staff, and counsel to interact safely in the courtroom.” It will be providing “further guidance in the coming weeks” how the trial “will differ from the pre-pandemic trials”; for example, “how voir dire will be conducted, where the jury will be seated, where the jury will go during breaks and deliberations, where counsel tables will be placed, how to ensure that exhibits needed for cross-examination are kept secure until needed, whether counsel will be permitted to be present in the same room with witnesses who are being examined remotely, face covering and any other PPE requirements for those [] in the courtroom.” Following a July 13, 2020 teleconference, the jury trial scheduled to begin on August 3, 2020 was continued.  In a July 17, 2020 Order, the Court directed the parties to meet and confer and submit a joint status report providing their views about when the trial should be set for trial.  In addition, the pretrial conference scheduled for July 27, 2020 at 2:00 p.m. (EDT) was converted to a teleconference. On August 20, 2020, the Court entered an Oral Order after “[h]aving reviewed the parties' August 14, 2020 joint status report (D.I. 604), and having considered the parties' positions as well as the ongoing uncertainty regarding resumption of civil jury trials and the uncertainty of the Court's schedule,” ordering the parties to “meet and confer and, on September 4, submit another joint status report, providing their updated positions as to how this case should now proceed.” On October 7, 2020, the Court issued an Oral Order directing the parties to meet and confer and submit another joint status report advising the Court of their and their witnesses' availability for a jury trial to be held between November 30 and December 10. The parties were also advised that the Court has not yet decided not to hold trial beginning on November 5 (with jury selection on November 2 and/or 3) but is considering other options. The Court also informed the parties that it had issued its Jury Trial Restart Guidelines, available on the Court's website, which the Court intends to discuss with the parties when trial is scheduled. After numerous discussions with the parties regarding whether and when to schedule jury trial, the Court indicated it has “found (unfortunately) no date that is reasonable and available to all parties and to the Court.” Therefore, the Court ordered that the trial be continued until a date to be determined, “most likely in 2021 (and certainly NOT in 2020).” It was also noted that “any trial may need to be further rescheduled due to further developments, including the evolving public health situation and other cases (especially criminal cases) that may require trial.” On August 25, 2021, the Court issued an Oral Order setting the final pretrial conference to be held on November 12, 2021 and jury selection and jury trial to be held on November 23, 2021 beginning at 9:00 a.m. On October 26, 2021, the Court issued an Oral Order indicating, among other things, that it would be sending out its “now standard ‘COVID questionnaire’ to the members of the jury pool but will not be sending any further questionnaire to the pool.” (Case No. 1:17-cv-01390; June 9, 2020, June 24, 2020, July 2, 2020, July 13, 2020, July 17, 2020,  August 20, 2020, October 7, 2020, October 13, 2020, August 25, 2021 and October 26, 2021).

District of Nevada (Las Vegas)

Chief Judge Miranda M. Du

Composite Resources, Inc. v. Recon Medical, LLC – The U.S. District Court for the District of Nevada in Las Vegas granted plaintiff’s motion to amend the pretrial order to allow the listing of a witness that was purportedly inadvertently omitted. The Court found that granting the motion would not cause substantial injury to defendant or inconvenience for the Court, and denying the motion would result in injustice because plaintiff would be unable to put on its damages expert at trial. As part of its analysis of the four factors to be considered, the Court found “allowing amendment will not adversely impact the trial, which has been rescheduled several times due to the COVID-19 pandemic and is currently set for November 29, 2021.” On October 22, 2021, the Court entered a Minute Order indicating that the Court is in the process of “resuming trials” and that as cases “resolve or move off the [the] trial stack, your placement on that stack will move up.” On November 8, 2021, the Court denied the defendant’s motion to dismiss the case under the anti-claim-splitting doctrine, deciding to move forward with the jury trial regarding the request for injunctive relief on the patent infringement claim as opposed to requiring plaintiff to seek the relief in bankruptcy court, after the trial had been delayed because of the COVID-19 pandemic during which time the defendant filed for bankruptcy protection. (Case No. 2:17-cv-01755; June 7, 2021, October 22, 2021 and November 8, 2021).

Middle District Of North Carolina

District Judge William L. Osteen, Jr.

OptoLum Inc. v. Cree Inc. – The U.S. District Court for the Middle District of North Carolina held a Status Conference on November 4, 2020, planning for the jury trial presently scheduled to commence on January 11, 2021.  The Court discussed the general layout for the courtroom during trial proceedings and responded to questions or concerns from counsel with respect to COVID-19 pandemic precautions, such as facial masks, social distancing, sanitizing surfaces, jury selection and accommodations, parties presenting exhibits electronically as opposed to physically and the estimated number of people who will be permitted in the courtroom. On December 17, 2020, the Court issued an Order granting the parties' Joint Motion to Continue, continuing the jury trial to May 3, 2021. On April 8, 2020, the Court issued an Order resetting the jury trial for October 5, 2021 at 9:30 a.m. On November 9, 2021, the Middle District of North Carolina jury returned its verdict, finding that the patents were not proven to be infringed. (Case No. 1:17-cv-00687; November 20, 2020, December 17, 2020, April 8, 2021 and November 9, 2021).

Eastern District of Texas (Marshall Division)

Chief District Judge J. Rodney Gilstrap

Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT et al. –The U.S. District Court for the Eastern District of Texas’s Marshall Division granted plaintiff’s Motion To Continue Trial Setting, continuing the jury trial from July 12, 2021 to August 16, 2021 at 9:00 a.m., finding that a continuance is appropriate given the Court’s trial schedule and conflicts presented by the current trial date.  As part of its Motion the plaintiff stated that defendants’ witnesses will face difficulties traveling from Lithuania during the COVID-19 pandemic, although defendants responded they believe that they can comply with international travel restrictions while ensuring their witnesses are physically present for the trial.  On August 25, 2021, the Court granted another continuance in response to the parties Agreed Motion To Continue Trial Setting, resetting the jury trial for November 1, 2021 at 9:00 a.m. On November 5, 2021, the Eastern District of Texas jury returned its verdict, finding that the asserted claims of the patent-in-suit were proven to be willfully infringed, were not shown to be invalid, and the plaintiff was awarded damages of $7,474,876.00 as lost profits.  (Case No. 2:19-cv-00395; June 8, 2021, August 25, 2021 and November 5, 2021).

 

Western District of Texas (Waco)

District Judge Alan D. Albright 

Broadband iTV, Inc. v. DISH Network LLC -- The U.S. District Court for the Western District of Texas in Waco issued an Amended Scheduling Order setting the jury trial for November 15, 2021.  On October 7, 2021, the parties filed the Proposed Joint Pretrial Order which indicated that the parties “recognize that the COVID-19 pandemic may affect the manner of presentation of witness testimony.” In addition, there was an agreement that “[t]here will not be any attempt to use the COVID-19 pandemic or related conditions against any party or its witnesses or how any party structures its trial presentation (i.e., through use of video testimony).” (Case No. 6:19-cv-00716; July 26, 2021 and October 7, 2021).

Jiaxing Super Lighting Electric Appliance Co., Ltd. et al v. CH Lighting Technology Co., Ltd. et al. - The U.S. District Court for the Western District of Texas in Waco issued an Order Concerning Final Pretrial Conference Motions entering motions that the Court had provided oral rulings on during the Final Pretrial Conference. Among the granted motions was an agreed upon Motion in Limine to exclude information relating to plaintiffs’ political affiliations, plaintiffs’ nationalities, and COVID-19. The jury trial is set to begin on November 1, 2021 at 9:30 a.m. On November 4, 2021, the Western District of Texas jury returned its verdict, finding that the asserted patent was not shown to be invalid and that one defendant was shown to be willfully infringing the asserted patent, entitling plaintiff to $13,872,872.00 for past damages, and that a second defendant was also shown to be infringing, but not willfully, entitling the plaintiff to $298,454.00 for past damages. (Case No. 6:20-cv-00018; October 15, 2021 and November 4, 2021).

VideoShare, LLC v. Google LLC et al. -- The U.S. District Court for the Western District of Texas in Waco issued an Amended Scheduling Order setting the jury trial for November 8, 2021.  On October 12, 2021, the parties filed the Proposed Joint Pretrial Order which contained a list of agreed upon MILs, including an agreement to “exclude testimony, argument, evidence, or reference to the religious beliefs, political party affiliation, health (including vaccination status), race, ethnicity, national origin, and/or sexual orientation of the parties, witnesses, or counsel.” On November 4, 2021, the Court issued a Notice Of Trial Procedures, notifying the parties of trial procedures including COVID-19 safety protocol and remote participate decorum. On November 16, 2021, the Western District of Texas jury returned its verdict, finding that the asserted claims of the patent-in-suit were infringed and not shown to be well-understood, routine and conventional.  The jury found that plaintiff was entitled to damages of $25,900,000.00 to reasonably compensate for the infringement. (Case No. 6:19-cv-00663; August 3, 2021, October 12, 2021, November 4, 2021 and November 16, 2021).

The United States Court of Federal Claims

Court of Federal Claims Judge Patricia E. Campbell-Smith

University of South Florida Board of Trustees v. United States of America – The U.S. Court of Federal Claims issued an Order on November 2, 2021 with respect to the pretrial conference which was previously scheduled to held on November 8, 2021.  The Court offered the parties the opportunity, due to the on-going COVID-19 pandemic concerns, to participate either in-person or virtually for the pretrial conference. The court noted that the parties should keep in mind that no more than ten people are permitted in the courtroom at any time, and the court requires three participants in the room. The court indicated that it does not oppose the virtual participation of multiple persons for each party at the pretrial conference, but will require any non-speaking virtual participants to turn off their video feed and ensure their microphone is muted unless called on by the court. The Court also informed the parties that the courthouse is currently closed to members of the public, due to the COVID-19 pandemic restrictions, and it “anticipates that there will be much material to cover during the pretrial conference to ensure a smooth trial in the hybrid courtroom and virtual environment that the court anticipates for the trial in this matter as a result of the restrictions” On November 9, 2021, the Court issued a Trial Management Order after holding a pretrial conference memorializing the discussion and understanding reached, including COVID-19 Protocols. The Court addressed the COVID-19 Protocols which include: 1) requiring  counsel of record for each party to orally certify at the beginning of each day of the proceeding that any in-person participants (their colleagues, staff, and clients) are asymptomatic for COVID-19; 2) a limitation that no more than ten people may be in the courtroom at any time, and since the court will require three people in the room, the parties may have between them a total of seven people in the courtroom at one time; 3) requiring counsel to submit, for contact tracing purposes, a list of in-person participants each day, including their names, titles, and contact information; 4) a mask requirement in the courthouse and the courtroom at all times; and 5) a limitation of four people at a time on the elevator. The Order also included Attorney Declaration and Participant Declaration attachments representing an acknowledgment of having read the trial management order and agreement to abide by the procedures, terms, and conditions as set forth therein. The Court also noted that it “will allow additional time beyond 5:00 p.m., if required and as possible, given the COVID-19 restrictions in place, for the continuity of witness testimony or another compelling reason.”  Trial will be held, with the parties presenting both virtually by Zoom for Government and in-person for five days, beginning on December 6, 2021. (Case No. 0:15-cv-01549; November 2, 2021 and November 9, 2021).

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