Trial

For those patent cases that were on the eve of trial, or at least relatively close, the COVID-19 pandemic will likely represent a delay—either of a defined or undefined length—as reflected by some of the orders issued in those matters. 

Central District of California (Southern Division—Santa Ana)

District Judge James V. Selna

TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson et al.  – The U.S. District Court for the Central District of California in Santa Ana vacated the April 2021 jury trial date and all other dates, other than the parties’ January 11, 2021 mediation, in light of the COVID-19 pandemic. The Court set a status conference for 9:00 a.m. on January 19, 2021 to discuss the results of the mediation and rescheduling of the trial and all other dates. (Case No. 8:14-cv-00341; December 14, 2020).

District Judge Josephine L. Staton

Sportspower Ltd., Inc. v. Crowntec Fitness Mfg. Ltd. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana sua sponte continued the pretrial hearing and deadlines for motions in limine from April 3, 2020 to August 7, 2020. The order was issued in accordance with the Central District of California’s Continuity of Operations Plan (“COOP”) which suspended hearings in civil cases, except emergency and time sensitive matters including temporary restraining orders and preliminary injunctions, as ordered by the assigned district judge. (Case No. 8:17-cv-02032; March 30, 2020).

Central District of California (Western Division—Los Angeles)

District Judge John A. Kronstadt

Nike, Inc. v. Skechers U.S.A., Inc. – The U.S. District Court for the Central District of California’s Western Division in Los Angeles issued a ruling on a number of motions, and instructed the parties to meet and confer and file a joint report about their respective views as to the potential trial dates of March 16, 2021 or March 30, 2021.  The Court further indicated that its order setting a trial date will also set a date for a status conference in January 2021, which will proceed “if necessary to discuss a potential modification of the trial date in light of any ongoing issues related to COVID-19.”  (Case No. 2:17-cv-08509; October 26, 2020).

Northern District of California (San Francisco)

District Judge Edward M. Chen

Asetek Danmark A/S v. CoolIT Systems, Inc.- The U.S. District Court for the Northern District of California in San Francisco issued an Order setting a trial date of February 28, 2022, but warning the parties about the “uncertainty of trial scheduling in light of the backlog due to the pandemic and the possibility of trailing.” The Court further encouraged the parties to continue exploring settlement negotiations and alternative dispute resolution in light of the uncertainties of trial, particularly under the “consequential circumstances” presented by the COVID-19 pandemic. (Case No. 3:19-cv-00410; December 22, 2020).

District Judge William H. Orrick

Intel Corp. v. Tela Innovations, Inc. – The U.S. District Court for the Northern District of California in San Francisco issued an Order ruling on Summary Judgment Motions, Motions To Strike and Exclude, and Administrative Motions To Seal. The Court further indicated that it appears the case will proceed to trial on February 25, 2021 “as long as COVID-19 conditions in the Bay Area counties allow for it”, but that it will have further information at the Pretrial Conference. On January 9, 2021, the Court issued an Order vacating the deadlines and hearings in the stipulated scheduling order, further indicating that if the defendant’s Motion To Certify Judgment and Stay Pending Appeal is denied, a new pretrial and trial schedule will be set on January 19, 2021 during the Motion Hearing. (Case No. 3:18-cv-02848; December 22, 2020 and January 9, 2021).

District Judge Richard Seeborg

Gamevice, Inc. v. Nintendo Co., Ltd. et. al. – The U.S. District Court for the Northern District of California in San Francisco granted plaintiff’s Motion and Order to Extend Schedule in View of COVID-19 Travel Restrictions,  requesting an approximately three month extension in view of the difficulties in domestic and international travel due to COVID-19 pandemic travel restrictions. The jury trial date, currently scheduled for July 6, 2020, was moved to October 26, 2020. The Final Pretrial Conference will be held on September 23, 2020. In an August 3, 2020 Notice Vacating Pretrial Conference And Jury Trial And Setting Further Case Management Conference, the pretrial conference and jury trial were vacated and the Court scheduled a Case Management Conference for September 3, 2020 at 10:00 AM to be held telephonically. (Case No. 3:18-cv-01942; May 19, 2020 and August 3, 2020).

Attachment:
Gamevice, Inc. v. Nintendo Co., Ltd. et. al. Docket 177 - May 19, 2020

Northern District of California (San Jose)

District Judge Beth Labson Freeman

Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose granted the parties’ stipulation and order extending by two-days plaintiff’s deadline for filing its motion for attorney’s fees, due to COVID-19 and the shelter-in-place orders in San Francisco. (Case No. 5:18-cv-00767; March 19, 2020).

Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose denied plaintiffs’ motion to stay a determination of attorney fees and costs pending appeal and rejected plaintiffs’ argument that public policy favored a stay due to the coronavirus outbreak. In analyzing the four factors to determine whether to stay awarding attorneys’ fees and costs pending appeal, the court found that plaintiffs had “made no showing that the public interest would be served by a stay -- only that the court’s ‘potentially reduced resources’ due to COVID-19 health concerns supports a stay.” The court acknowledged that COVID-19 has certainly impacted the courts’ operations across the country, however, it went on to say that “this Court continues to resolve substantive motions.” The court was not persuaded that any of the issues presented warranted a deviation from the court’s usual course of considering attorneys’ fees promptly after the merits decision rather than waiting for resolution of the appeal. (Case No. 5:18-cv-00767; April 20, 2020).

Finjan Inc. v. Cisco Systems Inc., – The U.S. District Court for the Northern District of California in San Jose issued Civil Minutes for the pretrial conference held via Zoom Webinar on April 30, 2020, in which the Court indicated that Jury Selection and the Trial have been set to start on June 22, 2020 at 9:00 a.m. At this time, the Court intends to seat a jury of 8 (subject to change) chosen from a panel of 50. The Court held a Case Management Conference on May 26, 2020, during which it reset the Jury trial date to October 19, 2020. On September 24, 2020 the Court issued an Order notifying the parties that the Northern District of California will resume civil trials on October 1, 2020, and confirming that the jury trial for this case will commence on October 19, 2020. In response to defendant’s Motion To Continue The October 19, 2020 Jury Trial Or To Implement Procedures That Ensure A Fair Trail, requesting that the Court continue the trial to January 2021 or in the alternative to November 2, 2020 to allow lead counsel to “ameliorate” a medical condition to allow him to wear a mask, the Court reset jury selection and trial for November 2, 2020. In addition, in order to avoid any potential prejudice or unfairness, the defendant had also requested that an Order be issued “requiring all fact witnesses to testify remotely and that neither party have a corporate representative at counsel table during trial”. On October 8, 2020, the Court denied defendant’s Motion To Continue The October 19, 2020 Jury Trial Or To Implement Procedures That Ensure A Fair Trail to the degree it requested that “the Court issue an Order requiring all fact witnesses to testify remotely and that neither party have a corporate representative at counsel table during trial.” The Court rejected the argument that such an order was necessary to ensure a fair trial, noting that “[v]ideo testimony has long been used when witnesses are not available for in court testimony and it has proved effective.” Each party was granted “complete discretion” to determine which of its witnesses will appear in court and which will appear remotely by video. In an October 23, 2020 Order, the Court continued the jury trial to January 11, 2021. On December 16, 2020, the Court issued an Order continuing the jury trial from January 11, 2021 to June 4, 2021. (Case No. 5:17-cv-00072; April 30, 2020, May 21, 2020 & May 22, 2020, May 26, 2020, September 24, 2020, October 2, 2020, October 8, 2020, October 23, 2020 and December 16, 2020).

Attachment:
Fijan Inc. v. Cisco Systems Inc., October 23, 2020 Order

Southern District of California (San Diego)

District Judge Cathy Ann Bencivengo

Finjan, Inc. v. ESET, LLC, et al. – “Based upon the current state of extraordinary circumstances due to the Coronavirus/COVID-19 Pandemic,” the U.S. District Court for the Southern District of California in San Diego declared a mistrial, with the agreement of counsel, after suspending the jury trial proceedings and excusing the jury for the day. (Case No. 3:17-cv-00183; March 16, 2020).

District Judge Roger T. Benitez

Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd. et al. – The U.S. District Court for the Southern District of California in San Diego vacated the February 22, 2021 jury trial date, due to the COVID−19 pandemic and recent Orders of the Chief Judge suspending jury trials. The Court indicated that it will reschedule the jury trial date once jury trials are permitted to resume. (Case No. 3:18-cv-02109: January 9, 2021).

District Judge Janis L. Sammartino

Genentech, Inc. v. Eli Lilly and Co. – The U.S. District Court for the Southern District of California in San Diego, finding good cause, granted the parties’ joint motion to bifurcate the “exceptional case” determination under 35 U.S.C. § 285 and attorney fees motion under Rule 54(d)(2), allowing the court to decide the exceptionality before defendant presents evidence on the amount of its reasonable attorney fees. The parties’ request is in response to stay-at-home orders issued throughout the country in response to the COVID-19 pandemic, which has made it “difficult for the defendant to collect and timely organize their billing information necessary to meet their burden to prove reasonableness of attorney fees.” (Case No. 3:18-cv-01518; March 31, 2020).

District of Colorado (Denver)

Chief District Judge Philip A. Brimmer

Barnett v. Surefire Medical, Inc. et al. – The U.S. District Court for the District of Colorado in Denver granted defendant’s Motion to Strike [Plaintiff’s] Jury Demand and denied plaintiff’s Motion for Trial Before an Advisory Jury, ordering that the four day jury trial set to commence on January 25, 2021 at 8:00 a.m. is reset for a bench trial beginning on the same date and time. The Court decided to exercise its discretion and decline to empanel an advisory jury, noting that the plaintiff concedes that no legal issues remain and “empaneling an advisory jury during a pandemic does not make sense.” During a Status Conference held on December 17, 2020, there was a discussion of General Order 2020-21 regarding Court Operations During The COVID-19 Pandemic, entered on December 16, 2020, which ordered that all civil jury trials and all in-person bench trials scheduled to commence through January 29, 2021 in any courthouse in the District of Colorado are continued subject to further order of the presiding judicial officer. The Court encouraged the parties to discuss the options of a potential bench trial via Video Teleconference. In an Order issued on December 23, 2020, the Court vacated the trial preparation conference, currently set for January 8, 2021, and the bench trial, currently set for January 25, 2021. The parties were instructed to jointly contact Chambers to reschedule. The Court reset bench trial for February 14, 2022, with the trial preparation trial conference to be held on January 28, 2022. (Case No. 1:17-cv-02470; September 28, 2020, December 17, 2020, December 23, 2020 and January 4, 2021).

District of Delaware (Wilmington)

District Judge Richard G. Andrews

Baxalta Incorporated et al v. Bayer Healthcare LLC – The U.S. District Court for the District of Delaware in Wilmington issued a Scheduling Order in which it continued the trial due to the COVID-19 pandemic, stating that it “really doubt[ed] that a jury trial is feasible on September 21st under the circumstances.”  The Court felt a jury could be selected, however, “realistically . . . it would be a lot better to have a test jury trial where the practical difficulties of the trial are not exacerbated by having nearly every significant participant in the trial being from out-of-state.” Although it doubted that the parties would consent to a bench trial, the Court did note that such a trial would be possible to proceed as currently scheduled. The Court also expressed “concern that six months (and counting) of postponed trials is going to be a problem going forward” and that the “parties should expect to be double- or triple-booked for trial . . . [and] that they may not know until the eve of trial whether their trial will move forward.” In an Order After Conference, the Court reset the jury trial date for March 15, 2021.  (Case No. 1:17-cv-01316; August 12, 2020 and August 31, 2020).

ChanBond LLC vs. Cox Communications Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Order After Pretrial Conference adopting the Proposed Pretrial Order and indicating that the jury trial will begin on August 18, 2020 at 9:30 a.m. (EDT). The Court stated that “[t]he question of the viability of a civil jury trial a month and a half from now, complicated in this case by a multitude of witnesses being located within the United States but distant from Delaware, and the procedures that would be necessary should we be able to go forward, were left for another day.” In a July 15, 2020 Oral Order, the Court postponed the jury trial. In a October 13, 2020 Order, the jury trial was scheduled for May 17, 2021, at 9:00 a.m. The parties were instructed to submit a joint status report two months before the start of trial identifying any outstanding pretrial issues that need to be addressed, including whether they are having any witness availability issues. (Case No. 1:15-cv-00842; July 2, 2020, July 15, 2020 and October 13, 2020).

Horizon Medicines LLC v. Alkem Laboratories Ltd. – The U.S. District Court for the District of Delaware in Wilmington issued an Order rejecting a proposal to delay the bench trial, currently scheduled to proceed on September 14-16, 2020, until early 2021 so “that all witnesses attend the trial and testify in person.” The Court stated that it expects to go forward with the trial as scheduled, because the thirty-month stay will expire on November 30, 2020, and the defendant “may be in a position vis-à-vis the FDA’s requirements to launch then or soon thereafter.” As such it is in “the public interest” that the case be decided before then so that if not enjoined the defendant “has the option to launch and to provide generic competition.” With respect to the witnesses “unable or unwilling to testify in person”, the Court indicated that they may testify by video. The Court further noted that its expects “to have a limited number of lawyers, probably two per side, actually present in the courtroom . . . [that masking] and social distancing will be enforced . . . [and any] other persons (party representatives, other lawyers, support staff, the public) will not be in the courtroom, but will be able to watch the proceedings via video feed in another room or courtroom.” In an Order After Pretrial Conference, the Court indicated that the bench trial will begin on September 14, 2020 at 8:30 a.m. (EDT).  The Court also indicated that trial counsel shall be “limited to two attorneys per side, with no substitutions.”  (Case No. 1:18-cv-01014; July 29, 2020 and August 31, 2020).

Ingevity Corp., et al. v. BASF Corp. – The U.S. District Court for the District of Delaware in Wilmington granted the plaintiff’s request for a continuance of the jury trial, due to issues related to the COVID-19 pandemic, finding “there is little chance for a successful jury trial on September 14th, and I think it is prudent to continue it now.”  The Court noted that “this is a jury trial, not a bench trial, and, while I believe that most bench trials should be able to be fairly conducted through partial or complete reliance upon video technology, a jury trial is a different animal.” The Court did not, however, continue the August 28, 2020 pretrial conference, indicating in a separate oral order, that it will be held using Skype for business. In an Order After Pretrial Conference, the Court indicated that the jury trial will begin on January 4, 2021 at 9:30 a.m. (EST). The Court indicated that under the present plans trial counsel would be limited to two per side and noted that during the conference it had “explained some of its expectations in relation to COVID-19, and also set a conference on December 14, 2020, at 10 a.m. to further refine them in light of then-current events.” (Case No. 1:18-cv-01391; August 3, 2020 and August 28, 2020).

M2M Solutions LLC v. Sierra Wireless America, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Order rejecting a joint request that the Court postpone the pre-trial and trial dates due to continuing complications resulting from the COVID-19 pandemic. The parties indicated in their joint letter that “the safety and practicality of conducting a jury trial under the current circumstances, travel by co-counsel and witnesses remains a significant concern.” The Court stated that it is “not now inclined to continue the trial to spring 2021 . . . [because circumstances] could change for the better; travel restrictions could be lifted . . . [and] the pretrial conference, at least, can be done remotely.” The parties were invited to submit a letter after Thanksgiving “revisiting the issue in light of then-existing circumstances.” The pretrial conference is currently set for December 18, 2020, and a 5-day jury trial is set to begin on January 11, 2021. On December 1, 2020, the Court granted the parties request to continue the trial due to continuing complications from the COVID-19 pandemic. In addition to safety concerns, the parties noted that some counsel, client representatives and witnesses face travel restrictions based on the need to travel from other jurisdictions to Delaware. Furthermore, at least three witnesses “are at increased risk due to their age” and defendant’s lead counsel “may be at increased risk due to a preexisting health condition.”  On December 10, 2020, the Court granted the parties request to postpone the pretrial conference. (Case No. 1:14-cv-01102; October 2, 2020, December 1, 2020 and December 10, 2020).

Pfizer, Inc., et al. v. Apotex, Inc., et al. – On April 15, 2020, the parties’ request to continue a previously issued stay was granted and the April 29th pretrial conference, as well as the bench trial scheduled for May 11, 2020 was continued to an undetermined date. (Case No. 1:18-cv-00795; April 15, 2020).

Sprint Communications Company L.P. v. Charter Communications, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington granted the defendants’  request for a continuance of the jury trial currently scheduled to begin on October 5, 2020, due to issues related to the COVID-19 pandemic, stating that the Court did not think “it prudent to make the first civil jury trial in Delaware be one in which the risk from the nature of the case – no one from Delaware but me, court staff, and the jury – is at the maximum, particularly when there is essentially no harm from delay.” The defendants had argued, among other things, that many of the counsel and witnesses would need to travel to Delaware from other states and that “given the size of [the] case and the number of counsel involved, a trial that limits Defendants to 4-6 people in the courtroom would be unduly prejudicial . . . with 8 or more counsel anticipated to handle aspects of the trial.” In the Order, the Court indicated that if the trial were held on October 5th it would only allow 2 attorneys per side in the Courtroom, further stating that it “may insist on this practice for some time.” (Case No. 1:17-cv-01734; September 2, 2020).

TQ Delta LLC v. ADTRAN Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order directing the parties to advise the Court of their views regarding the “feasibility” of the scheduled jury trial currently set to begin on August 31, 2020.  In particular, the parties were requested “to state which witnesses they intend to call live, to identify the states in which the witnesses live and their views on travel to Delaware then, and to identify any other currently known concerns about the scheduled trial.” The Court granted defendant’s  Motion to Strike Reply Expert Opinions Based on the Doctrine of Equivalents, in part because it found that “the COVID-19 pandemic has already disrupted plans for an ‘orderly and efficient trial,’ [and] re-opening discovery to give Defendant an opportunity to cure the prejudice would only disrupt the schedule further.”  In a separate Oral Order, the Court indicated that the pretrial  conference scheduled for August 21, 2020, will be held using Skype for business. On August 4, 2020, the Court granted defendant’s request for a continuance of the trial, with the Court finding that  various “factors” made it believe that this case is not a “particularly good case with which to conduct a jury experiment during a pandemic.” Counsel and many of the witnesses would be coming from out of state, including two defendant fact witnesses and an expert witness, who is in a “high-risk category”, that do not want to travel to Delaware for the trial as scheduled. The Court also noted that Delaware is still in Phase One of reopening and by standing order has postponed all jury trials through August 30, 2020; it did “not think it is prudent to maintain a schedule for a jury trial for the first day on which it is currently possible to hold such a trial.” (Case No. 1:14-cv-00954; July 28, 2020, July 31, 2020, August 3, 2020, August 4, 2020 and November 6, 2020). 

Public Access Information for Hearing

November 13, 2020 at 10:30 a.m. (EST)

Phone No.: 1-202-503-1666

Conf. ID: 442633658

Attachment:
TQ Delta LLC v. ADTRAN Inc. DI 1189 - August 3, 2020

Wonderland Switzerland AG v. Evenflo Company, Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order converting the jury trial scheduled for February 1, 2021 to an entirely remote bench trial on that same date, upon agreement of the parties. In a letter to the Court, the parties had indicated their mutual agreement to proceed via a bench trial, however, they requested “for the safety of all concerned, that the trial be entirely virtual . . . [thereby relieving] some considerable COVID-related anxiety associated with an in-person proceeding.” (Case No. 1:18-cv-01990; December 9, 2020).

District Judge William C. Bryson

Lipocine Inc. v. Clarus Therapeutics, Inc. The U.S. District Court for the District of Delaware in Wilmington issued an Order clarifying the schedule in response to a submission from plaintiff requesting guidance as to scheduling of events up to and including the trial.  The Court indicated that, in light of the current situation with the COVID-19 pandemic, the February 2021 jury will likely be postponed.  As such, the parties were instructed to assume that the February 8, 2021 trial date will not hold, for the purposes of making necessary arrangements for trial. The parties were further instructed, however, that the remaining scheduled tasks set forth in the scheduling order were not postponed, and should be completed as currently scheduled to “ensure the maximum flexibility in rescheduling the trial if doing so becomes necessary.” The Court further indicated that it will conduct the jury trial on legal issues first and the bench trial on the inequitable conduct issue afterwards, considering any evidence that is introduced at the jury trial but is also relevant to inequitable conduct. On December 28, 2020, the Court issued a Second Amended Scheduling Order cancelling the pretrial conference, currently scheduled for January 8, 2021, and the jury trial, currently scheduled for February 8, 2021, because of the ongoing effects of the COVID-19 pandemic. The Court indicated that the pretrial conference and jury trial will be rescheduled once it becomes clear when jury trials will resume in the District of Delaware. (Case No. 1:19-cv-00622; November 12, 2020 and December 28, 2020)

TC Technology LLC v. Sprint Corporation et al. – The U.S. District Court for the District of Delaware in Wilmington denied the defendants’ motion to postpone the jury trial, scheduled to start on August 24, 2020, which sought a continuance of at least three months due to the COVID-19 pandemic. The Court noted that although the District of Delaware has removed all trials from the calendar for the month of July, no action has yet been taken as to trials scheduled for August 2020. The Court indicated it will issue a further order with regard to whether the trial in this case will go forward as scheduled or will be postponed after the District of Delaware makes a decision regarding trials scheduled to be held in August. The Court ordered that the jury trial be rescheduled, pursuant to the District of Delaware’s July 17, 2020 Revised Standing Order Re: Criminal And Civil Jury Selections And Jury Trials, continuing all civil and criminal jury selections and jury trials in the District scheduled to begin before August 31, 2020. The Court directed the parties to meet and confer in order to seek agreement as to a new trial date, further indicating that it will not be able to conduct a jury trial prior to March 2021. The Court converted the July 31, 2020 pretrial conference to a telephonic status conference, as requested by the parties, to be held at 10 a.m. (EDT). It further indicated that the pretrial conference will be rescheduled at a later date. On August 24, 2020, the Court reset the jury trial to begin on May 10, 2021. (Case No. 1:16-cv-00153; June 30, 2020, July 17, 2020, July 24, 2020 and August 24, 2020).

District Judge Mitchell S. Goldberg

Shire ViroPharma Inc. v. CSL Behring LLC – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit by June 9, 2020 “a letter of no more than two pages setting forth their clients’ positions on conducting a bench trial in this matter”; and in a further Order, required the parties to submit by June 15, 2020 “a letter of no more than three (3) pages setting forth their respective positions, with any relevant authority, as to whether a bench trial can and should proceed on the issues of invalidity and/or inequitable conduct.” In an effort to move the “otherwise trial-ready case forward”, the Court sought the parties’ input regarding how to proceed, noting that the COVID-19 pandemic has “currently rendered the scheduling of jury trials difficult if not impossible.” Plaintiff declined to waive its right to a jury trial, in response to the suggestion that the parties consider proceeding with a bench trial on all claims, however it “agreed that the inequitable conduct claim could be resolved via a bench trial, but pressed that (a) it is entitled to a jury trial on Defendants’ counterclaim of invalidity, and (b) any bench trial on inequitable conduct should not proceed until after the jury trial on infringement and invalidity.” The Court agreed that with respect to defendant’s invalidity counterclaims, plaintiff is entitled as a matter of right to a jury trial, therefore it “must try both Plaintiff’s infringement claim and Defendants’ invalidity counterclaim before a jury, and in light of the current limitation on jury trials, the question still remains as to whether a bench trial can proceed solely on Defendants’ counterclaim for inequitable conduct prior to the jury trial on infringement/invalidity.” The Court further ruled that it must “determine whether there are ‘common factual issues’ between Defendant’s counterclaim for invalidity and Defendant’s counterclaim for inequitable conduct, such that a bifurcated bench trial on inequitable conduct prior to a jury trial on infringement/invalidity would violate Plaintiff’s Seventh Amendment rights.” Lacking sufficient information to make this determination of whether or not “common factual issues” exist, the Court directed the parties to submit letter briefs specifying the facts they intend to introduce regarding the invalidity and inequitable conduct counterclaims. After reviewing the parties’ letters, the Court found “that there is a risk of overlapping factual issues on the inequitable conduct and invalidity claims such that a bench trial on equitable conduct should not proceed before a jury trial on the other two claims.” The Court further indicated that it had spoken with Chief Judge Leonard Stark regarding trial scheduling, and advised the parties “that once Delaware courtrooms are cleared for civil trials, a trial date will be selected forthwith.” (Case No. 1:17-cv-00414; June 4, 2020, June 11, 2020, July 29, 2020 and September 17, 2020).

Attachment:
Shire ViroPharma Inc. v. CSL Behring LLC Doc #308 - June 4, 2020

District Judge Kent A. Jordan

Novartis Pharmaceuticals Corporation v. Accord Healthcare Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington denied defendant's motion for a partial stay of final judgment, seeking to avoid the reset of the Food and Drug Administration's final approval of defendant’s Abbreviated New Drug Application ("ANDA"), after a finding that the patent was infringed and not invalid. As part of its argument, defendant pointed to potential irreparable harm caused by delay in the re-approval process, if defendant is successful on appeal, calling the suggestion that approval will be speedy “speculation," and suggesting that the COVID-19 pandemic could cause delays in approval. The Court found that fulfilling the congressional intent that a final approval be reset as a result of final judgement against the applicant will not irreparably harm defendant, nor would it be in the public's interest to change the "careful balance" created by Congress, including entrusting enforcement of final judgments to the FDA. (Case No. 1:18-cv-01043; December 10, 2020).

District Judge Maryellen Noreika

TRUSTID, Inc. v. Next Caller Inc. – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit a letter by June 30, 2020, stating either that all parties agree to go forward with the pretrial conference on July 6, 2020 live in the Courthouse or that all parties do not so agree to proceed live.  The Court indicated it was “cognizant that traveling from other parts of the country or appearing live in court may present obstacles for counsel, [and therefore] the conference will take place live in court only if 1) all parties agree and 2) all attendees wear face coverings unless excused because social distancing is observed.”  If all parties do not agree to an in-person proceeding, the pretrial conference will take place telephonically or at a later date when it can be held in-person. The Court further advised the parties that “[i]f the hearing proceeds in the courtroom, each side may have no more than two (2) counsel present, only one of whom may sit at counsel table at any given time [and arguments] will be made from counsel table.” The jury trial is currently set to begin on December 14, 2020. In a July 2, 2020 Order, the Court postponed the pretrial conference to a date to be determined. The Court reset the pretrial conference for December 7, 2020 at 1:00 p.m. (EST) and indicated that “the format (live or remote) [will] be determined closer to the time of the conference.” In response to a joint request from the parties to postpone the 5-day jury trial “in view of the parties’ concerns about conducting a jury trial in the midst of the on-going pandemic,” the Court reset the jury trial for July 12, 2021 at 9:30 a.m. (EDT), and reset the pretrial conference for June 28, 2021 at 10:00 a.m. (EDT). (Case No. 1:18-cv-00172; June 29, 2020, July 2, 2020, September 25, 2020 and November 5, 2020).

Attachment:
TRUSTD, Inc. v. Next Caller Inc. Oral Order - November 5, 2020

Chief District Judge Leonard P. Stark

Adverio Pharma GmbH et al v. MSN Laboratories Private Limited et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order ruling on a number of recent filings. The Court indicated that it intends to proceed, as scheduled, in December, with as much of the remote bench trial as possible, possibly the entirety of  the trial. The Court had previously stated that it expected to be available for trial at some or all of the following times: December 14: 12 pm to 7 pm; December 15, 16, 17, 18: 8 am to 7 pm; December 22: 8 am to 12 pm; and December 23: 8 am to 1 pm. The Court was not persuaded by Plaintiffs that its fact witnesses are unavailable to testify live (remotely) or that, if they are unavailable, that admission of their deposition testimony is not a fair substitute. The Court stated that both sides will have a full and fair opportunity to present their positions (before, during, and after trial) as to whether any non-appearance of any witnesses live at trial is due to issues relating to the merits of the inequitable conduct allegations, travel restrictions arising from the COVID-19 pandemic, or other factors. The Court further set a teleconference with the parties to be held on Wednesday, November 25, 2020, beginning at 11:00 a.m. (EST) to discuss their proposals and any disputes in the joint status report and how the case should now proceed. (Case No. 1:18-cv-00073; November 18, 2020).

Align Technology, Inc. v. 3Shape A/S et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties' Joint Status Report, setting the first of plaintiff’s seven trials against defendant for April 12, 2021 before a jury with a bench trial on the equitable defenses to be held concurrently or immediately after the conclusion of the jury trial. The next trial to be held would be case initiated by the defendant to followed by the remaining trials initiated by the plaintiff.  Among the considerations cited by the Court in making its determinations was “the Court's highly constrained resources (especially with respect to its ability to conduct jury trials), particularly during the pandemic.” The Court also noted agreement with plaintiff’s position “that it would not be prudent ‘to burden the jury [in the first action] with an additional, unnecessary decision’ by requiring an advisory jury verdict on equitable issues.” (Case No. 1:17-cv-01646; November 13, 2020).

A. O. Smith Corporation v. Bradford White Corporation – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties' Joint Status Report, indicating that the Court “is not currently able to accommodate the parties' request to move the bench trial from July 21 to the week of September 21 or October. Due to other trials on the Court's calendar, the options currently available are: (i) July 21-31; (ii) August 14-24; or (iii) September 23-25 (full days) followed by late afternoon/evening sessions from September 29 until the conclusion of trial.” The Court further indicated that it is “giving serious consideration to ordering [the] trial to be a remote trial, whenever it occurs” and ordered the parties to meet and confer and submit another joint status report indicating their positions on how the case should now proceed. After reviewing the further status report and balancing “the parties' preferences, the interests of public safety, and the Court's calendar”, the Court ordered “that: (i) the bench trial will be a remote trial, such that all attorneys and all witnesses will appear by way of videoconferencing technology and only Court staff will be in the courtroom; (ii) trial will be held on some or all of the following days, subject to the parties' time limits: August 14, 17, 18, 19, 20, and 21; (iii) the proposed pretrial order is due on July 27; and (iv) the pretrial conference will be held (via video conference) on August 5 at 4:30 p.m.” On August 4, 2020, the Court issued a Memorandum Order dealing with a number of issues relating to the bench trial scheduled to begin on August 14, 2020, ruling on a number of MIL’s and directing the parties to be prepared at the pretrial conference to discuss “modifications of the Court’s standard procedures (regarding, e.g., provision of copies of exhibits to opposing counsel, adverse witnesses, and the Court) given that this trial will be conducted entirely remotely.” On August 20, 2020, the Court docketed a Minute Entry marking the conclusion of the bench trial held before Chief Judge Leonard P. Stark from August 14, 2020 through August 20, 2020. (Case No. 1:18-cv-00412; June 24, 2020, June 30, 2020, August 4, 2020 and August 20, 2020).

Cirba, Inc. d/b/a Densify, et al. v. VMware, Inc. – The U.S. District Court for the District of Delaware in Wilmington granted in part defendant’s request to modify the post-trial briefing schedule, ordering that all post-trial opposition briefs are due April 3, 2020. The court recognized that “further discovery may be necessary after briefing has concluded and/or following argument on the motions” but “disagree[d] that such discovery should occur before briefing can proceed. However, considering challenges and concerns relating to COVID-19, a slight modification to the schedule is appropriate.” On December 21, 2020, the Court granted defendant’s motion for a new trial and motion to consolidate cases. It noted that “given the unfortunate effect of the ongoing coronavirus pandemic on the Court’s docket, finding time on the Court’s calendar for trials (once jury trials restart in this District, which has not yet occurred) presents an extraordinary challenge.”  The Court further noted that it was “no longer realistic” to believe the trial regarding the patents could be accomplished in September 2021, due to the specifics of the case and “the general challenges confronting the Court’s calendar.” The parties were directed to meet and confer and submit a proposed consolidated schedule and “to propose a time frame for a consolidated trial (to be held sometime in 2022 or beyond).”  (Case No. 1:19-cv-00742; March 27, 2020 and December 21, 2020).

Guardant Health, Inc. v. Foundation Medicine, Inc. – On April 23, 2020, the U.S. District Court for the District of Delaware in Wilmington granted the defendant's motion to continue a trial scheduled to begin on June 8, 2020, due to the viral outbreak until either July or October 2020. In doing so, the court expressed its primary concern as to “whether it will be safe and consistent with the public interest to conduct jury selection (a process likely to involve more than 40 citizens and an approximately equal number of court staff, lawyers, and party representatives) and empanel a jury (which would then, in normal practice, consist of 8 jurors confined to a jury box and a jury room during working hours for at least a week).” The court also noted a further secondary concern, irrespective of whether it is possible to select and empanel a jury by June 8th, as to whether “it will be safe and prudent for counsel and all required witnesses and party representatives to travel from their homes at various locations around the country and spend a week or more together (in hotels or temporary residences, in restaurants, in the courtroom, etc.) in Delaware.” Given the trial is only about six weeks away, the court felt that since it “seems nearly certain that one or more” of the trial team members or an expected live witness is part of a vulnerable population, or has commitments to others who need special care under the current circumstances that takes “precedence over the Court’s strong interest in keeping its cases moving and conducting trials in a timely manner[.]” On September 25, 2020 the Court ordered the parties to meet and confer and submit a joint status report including their proposals for how the case should proceed in light on the ongoing COVID-19 pandemic. In particular, the parties were instructed to address “whether the Court should consider continuing the trial to a date certain, continuing the trial to a date to be determined, proceeding with the trial as scheduled but converting it to a bench trial (and, if so, whether it should be partially or wholly remote), or proceeding with the trial as scheduled as a jury trial (and, if so, what restrictions the Court should consider regarding the number of attorneys and witnesses and others who may be in the courtroom). On October 5, 2020, the Court advised the parties that courtroom space is available for a potential November 30 trial date and ordered them to meet and confer and submit a joint status report no later than October 6, 2020, advising the Court whether it should reschedule trial for November 30, 2020. In addition, the parties were ordered to “advise the Court of their views on: (1) foregoing any jury trial right in favor of a bench trial; (2) whether there are any members of the trial team or any party who cannot or should not travel to Delaware and be physically present in the courtroom due to their own health situation or the health situation of those with whom they reside; (3) whether any witnesses cannot or should not travel to Delaware and be physically present in the courtroom for the same reasons; (4) which witnesses the parties propose will appear in person and which will appear by remote video conferencing technology; and (5) whether the court should restrict the number of attorneys and trial team members present in the courtroom.” On October 16, 2020, the Court ordered that the jury trial will commence on November 30, 2020 and the pretrial conference will be conducted via videoconference technology and held on November 13, 2020 at 2:00 p.m. The Court stated that if delayed it was unclear when trial would occur, since there are at least 200 civil jury trials scheduled for 2021 in the District of Delaware (not including criminal trials and continued civil trials awaiting a new trial date) and under current restrictions only one jury trial may proceed at a time. The Court adopted the parties suggestions that all witnesses testify remotely, because not all of the witnesses could travel to Delaware and the Court was concerned about the “risk of unfair prejudice to one side, should more of its witnesses (or a more ‘important’ witness) not be able to come to the courtroom than is the case for the other side.”  The Court further limited each side to a maximum of five representatives physically present in the courtroom at any one time, with one slot reserved for Delaware counsel, but did not require that each slot be occupied by the same person each day. In addition, a video feed of the trial will be transmitted to another courtroom in the courthouse. The parties were also permitted to state and preserve objections to the order and how the trial will be conducted, including, for example, a concern raised that “ the jury pool and jury will not be representative due to the situation that exists in Delaware (and several other states).”  On November 2, 2020, the Court issued an Order continued the jury trial scheduled for November 30, 2020 to a date to be determined, and directing the parties to meet and confer and submit a joint status report. On November 2, 2020, the Court issued an Order continuing the jury trial scheduled for November 30, 2020 to a date to be determined, and directing the parties to meet and confer and submit a joint status report. On November 17, 2020, the Court issued a Memorandum Order overruling defendant’s COVID-related objections, including raising safety concerns and questioning the ability to select a representative jury, but ultimately determined it had to continue trial indefinitely to allow the parties to litigate defendant’s “very serious” spoliation allegations. (Case No. 1:17-cv-01616; April 23, 2020, September 25, 2020, October 5, 2020, October 16, 2020, November 2, 2020 and November 17, 2020).

H. Lundbeck A/S et al v. Apotex Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order ruling on a number of motions and indicating that a scheduled teleconference would “be devoted to beginning a conversation about the timing and logistics of the remaining expert discovery and trial, all of which have been complicated by the ongoing effects of the coronavirus pandemic.” In preparation the Court advised the parties that due to the pandemic, it had to reschedule five jury trials (including a high-priority detained defendant criminal trial) into the same slot (October 13-23) currently scheduled for the case and that the next open calendar slot during which the Court could “give five or more largely consecutive, largely uninterrupted trial days is not until 2021.” The Court also indicated that it is considering the possibility of conducting the trial remotely, with no attorneys or witnesses in the courtroom, or partially-remotely, with a small number of lawyers and some of the witnesses in the courtroom but most participants appearing remotely, and to conducting it "after-hours" and on non-consecutive days, in an effort to hold the trial in a safe manner sometime during 2020. In a July 6, 2020 Order, the Court rescheduled the bench trial indicating that it “will be held on some or all of the following dates, subject to the parties' time limits: January 4-8 and January 26-29, 2021.”  The pretrial conference will be held on December 22, 2020 at 4:00 p.m. For reasons discussed during a December 9, 2020 teleconference, and having reviewed the parties' joint status report, the Court rescheduled the bench trial to be held on some or all of the following dates, subject to the parties' time limits: January 15−29, 2021. The pretrial conference will be held on January 8, 2021 at 2:30 p.m. (EST). On January 7, 2021, the Court issued a Memorandum Order regarding rulings on certain motions in limine, pretrial order issues, and other trial related matters. The Court indicated that the bench trial will be held at some or all of the following times, subject to the parties’ time limits and the Court’s other commitments: Friday, January 15: 9 a.m. to 5:30 p.m.; Tuesday, January 19: 9 a.m. to 5:30 p.m.; Wednesday, January 20: 8:30 a.m. to 11:30 a.m. and 2 p.m. to 4 p.m.; Thursday, January 21: 9:00 a.m. to 5:30 p.m.; Friday, January 22: 8:30 a.m. to 1:30 p.m. and 4 p.m. to 6 p.m.; Monday, January 25: 12:30 p.m. to 5:30 p.m.; Tuesday, January 26: 9 a.m. to 5:30 p.m.; Wednesday, January 27: 8:30 a.m. to 4 p.m.; Thursday, January 28: 8:30 a.m. to 5:30 p.m.; and Friday, January 29: 8:30 a.m. to 5:30 p.m. (Case No. 1:18-cv-00088; June 25, 2020, July 6, 2020, December 14, 2020 and January 7, 2021).

Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies Inc. – The U.S. District Court for the District of Delaware in Wilmington denied, among other rulings, plaintiff’s motion for a new trial due to defendant’s COVID-related comments made during the opening and at other times throughout the jury trial.  The Court found that the plaintiff failed to show that the statements were so prejudicial as to affect the fairness of the trial to cause manifest injustice, plaintiff did not meet its burden to show that the statements probably influenced the jury’s verdict, and that the “curative instructions fully cured the unfair prejudice to [plaintiff] from the violation of the MIL order from defendants’ opening statement.” The Court also pointed to the fact the verdict was mixed and “the verdict simply gives no indication that the jury was inflamed by nor influenced by defendants’ MIL violation.” (Case No. 1:17-cv-00275; August 13, 2020). 

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.” (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 and October 13, 2020).

Attachment:
Sunoco Partners Marketing & Terminals LP v. Powder Springs Logistics, LLC et al. Order - July 13, 2020
Sunoco Partners Marketing & Terminals LP v. Powder Springs Logistics, LLC et al. Order - July 17, 2020
Sunoco Partners Marketing & Terminals LP. v. Powddre Springs Logistics, LLC et al. - Jury Restart Guidelines - October 7, 2020

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