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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.
Jager Pro, LLC v. Bull Creek Welding and Fabrication, Inc. – The U.S. District Court for the Eastern District of Arkansas in Little Rock issued an Order cancelling a trial scheduled for June 7, 2021 because the Court has older cases set for trial that week. In the same Order, the Court noted that it had previously cancelled a trial scheduled for April 12, 2021 against another defendant due to “the ongoing emergency conditions due to COVID-19.” The Court further stated that it will decide the dispositive motions that have already been briefed by the parties, and reset trial dates for the matters, if necessary, in due course. (Case No. 4:19-cv-00107; March 12, 2021).
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. On December 12, 2021, the Court granted in part defendant’s motion seeking to exceed the scope of adverse direct with respect to three witnesses that plaintiff intends to call in its case in chief, so that the three defense witnesses can complete their testimony in one appearance at trial. The Court denied the motion with respect to two of the three witnesses, noting that defendant did not articulate specific concerns related to those witnesses potentially traveling and testifying twice. With respect to the third witness the Court granted the motion, including consideration of the witness’ “concern regarding increased family health risks due to travel is exacerbated by the emergence of the newest COVID-19 variant.” On December 28, 2021, “[f]or the purpose of COVID precautions,” the Court continued the trial to March 22, 2022. On December 29, 2022, the Court held a status conference via teleconference during which the parties jointly stipulated that they were prepared to move forward with the jury trial starting on January 18, 2022 at 8:30 a.m. The parties agreed to work in good faith to accommodate any legitimate witness requests relating to COVID-19 concerns, including the ability to appear by video if necessary and that they will inform the Court of any further COVID-19 issues. (Case No. 8:19-cv-01805; March 3, 2021, September 3, 2021, September 10, 2021, October 20, 2021, December 12, 2021, December 28, 2021 and December 29, 2021).
Fisher and Paykel Healthcare Limited v. Flexicare Incorporated – The U.S. District Court for the Central District of California in Santa Ana granted plaintiff’s motion to continue the current June 1, 2021 jury trial date until October 21, 2021, due to the COVID-19 pandemic. The Court noted that Orange County is presently in the purple zone, and would have to move two zones to the yellow zone before the Court could begin conducting jury trials under the present General Order, which was deemed “unrealistic in light of the present trial date.” The Court also noted a number of other factors that “compel a continuance”: 1) criminal cases take priority under the Speedy Trial Act and since the Court has not tried a criminal case in over a year, there is a backlog which must be addressed once the Court opens for jury trials; 2) there are many civil cases older than this case to be tried and there is no basis to advance this case ahead of other civil litigants who have also been waiting; and 3) there is a seven-week lead time to summons a jury. The parties were also advised that there is no assurance that the trial will proceed on October 21, 2021 for the same reasons. In accordance with the Court’s instructions at the parties’ August 9, 2021 status conference, the parties submitted a Joint Status Report Regarding Trial Scheduling after a meet and confer to discuss alternative dates for trial in view of current travel restrictions for both parties’ witnesses. The plaintiff advised the Court that several of its witnesses, including the named inventors, who are located in New Zealand could be impacted by “a current outbreak of COVID-19 infections in New Zealand, and there is no timeline or clarity from the New Zealand government as to when existing travel restrictions will be lifted or adjusted so that individuals could travel to California for trial and return home to New Zealand without disruption.” The plaintiff also indicated that New Zealand is moving towards a “phased reopening” that will be dependent on vaccination rates and the potential impact of additional variants of COVID-19, but that it expects to be able to proceed with trial in March of 2022. Likewise, defendant indicated it expects to proceed with trial in March 2022, but it continues to monitor COVID-19-related travel restrictions that may affect its witnesses located in the United Kingdom. On December 1, 2021, the Court denied plaintiff’s Motion To Strike Prior Art References. In the Order, the Court advised the parties to not use the “pandemic-related delay” to raise further preexisting issues and it encouraged the parties to meet and confer to resolve such issues, as informed by the Court’s prior rulings, with the goal of working toward efficient trial preparation. On December 6, 2021, the Court set the jury trial for March 22, 2022 at 8:30 a.m. (Case No. 8:19-cv-00835; February 24, 2021, October 15, 2021, December 1, 2021 and December 6, 2021)..
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).
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).
District Judge Andre Birotte, Jr.
Nomadix Inc. v. Guest-Tek Interactive Entertainment Ltd. – The U.S. District Court for the Central District of California in Los Angeles granted defendant’s Ex Parte Application to Permit Remote Trial Testimony of two witnesses. With respect to the first witness, the Court noted that the request was unopposed and “there is good cause to allow his remote testimony because [the witness] lives in Thailand and would face burdensome COVID-19 travel and quarantine restrictions if he traveled to Los Angeles for trial.” In the case of the second witness the plaintiff did oppose the request, but the Court decided to allow the remote testimony considering “the pandemic-related circumstances” that made the originally designated witness from Germany unavailable to testify, necessitating calling the second witness as an alternative witness, in combination with “the evolving circumstances of the COVID-19 pandemic, [the witness’] fall teaching schedule, and the ability of modern technology to facilitate [the] foundational testimony.” On December 8, 2021, the Central District of California jury returned its verdict finding that defendant breached the patent licensing agreement by failing to pay royalties, finding plaintiff was entitled to damages in the amount of $ 6,500,000 for that breach, but also finding that plaintiff was in breach of a separate Memorandum of Understanding, entitling defendant to damages of $ 2,500,000. (Case No. 2:16-cv-08033; August 30, 2021 and December 8, 2021).
Epistar Corp. v. Lowe's Companies Inc. et al. – The U.S. District Court for the Central District of California in Los Angeles held a Status Conference on October 7, 2021 via zoom in which the Court conferred with the parties about beginning the trial on October 19th instead of October 26,, 2021, which it indicated “will likely be unavailable due to the limited scheduling of jury trials during the pandemic.” During a Status Conference held by videoconference on November 9, 2021, the Court confirmed that the jury trial will start on November 16, 2021 at 8:30 a.m. On December 6, 2021, the Central District of California jury returned its verdict that the asserted claims of the patents-in-suit were proven to be willfully infringed and that the plaintiff was entitled to reasonable royalty damages of $2,121,000.00 as a one-time payment. (Case No. 2:17-cv-03219; October, 2021, November 9, 2021 and December 6, 2021).
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).
Plexxikon Inc. v. Novartis Pharmaceuticals Corporation – The U.S. District Court for the Northern District of California in Oakland granted in part and denied in part defendant’s Motion To Strike plaintiff’s expert’s supplemental damages expert report. As part of its analysis, the Court noted that although trial had been continued a number of times due to the COVID-19 pandemic, “this additional time did not liberate the parties to reopen discovery” and defendant would therefore be significantly restricted in its ability to effectively cross-examine the expert at trial if the Court did not strike the Second Supplemental Report. The Court further set a telephonic case management conference, due to recent developments in the Court’s COVID-19 protocols, for June 25, 2021, at 1:00 p.m., to discuss logistics for the upcoming trial. On July 22, 2021, the Northern District of California jury returned its verdict, finding that the patents were not proven invalid and were willfully infringed, and that plaintiff was entitled to damages of $177,792,640.01. On September 17, 2021, the Court issued a Judgment consistent with the jury findings entering judgment in favor of plaintiff finding the patents willfully infringed and not invalid, and awarding plaintiff damages of $177,792,640.01 as compensatory damages for infringement through July, 22, 2021. (Case No. 4:17-cv-04405; June 23, 2021, July 22, 2021 and September 17, 2021).
Cyntec Company, Ltd. v. Chilisin Electronics Corp. et al. – The U.S. District Court for the Northern District of California in Oakland issued a Final Pretrial Order for the 8 day jury trial that is schedule to commence on August 23, 2021. On September 1, 2021, the Northern District of California jury returned its verdict, finding that the asserted patents were willfully infringed, and that plaintiff was entitled to damages of $1,552,493.00 in lost profits, $320,463.00 in royalties for sales which plaintiff had not proven its entitlement to lost profits. (Case No. 4:18-cv-00939; July 30, 2021 and September 1, 2021).
Droplets, Inc. v. Yahoo, et al. – The U.S. District Court for the Northern District of California in Oakland requested the parties to submit a Supplement To The Joint Pretrial Statement consistent with the rulings made at the pretrial conference held on August 13, 2021. The Statement included a requirement that, unless excused by the Court, “all party-affiliated trial participants (including attorneys, staff, IT Specialists, consultants, party witnesses and party representatives) shall either: (1) be vaccinated for COVID-19 and provide proof of vaccine or (2) test negative for COVID-19 within five days prior to their first appearance at the courthouse (including appearance at voir dire or other proceedings) with confirmed negative results and provide confirmed negative results, prior to entering the courthouse.” Any unvaccinated participant would be required to be tested weekly throughout the trial and provide negative test results each week. The Statement also included the parties’ positions regarding vaccination of jurors, with the plaintiff stating that “the time to object to the impact of a vaccination requirement on the jury pool will be once data about the venire panel in attendance, from which the jury is to be selected, has been made available”, and the defendant agreeing with “the Court’s suggestion to excuse all unvaccinated jurors from jury service for this trial.” The defendant requested, alternatively, that should plaintiff object to sitting only vaccinated jurors that the Court “require any unvaccinated jurors to present a negative Covid-19 test either each week of jury service or until the Delta variant of Covid-19 subsides within the Oakland Division.” The jury trial is set to begin on September 13, 2021. On September 2, 2021, the Court issued an Order Continuing Trial And Setting Case Management Conference granting plaintiff’s unopposed motion for a continuance. The Court indicated that in light of the ruling it “need not and does not now reach the other issues set forth in [plaintiff’s] motion regarding the composition of the jury or the presence of unvaccinated persons in the courtroom.” In particular, as part of its motion, the plaintiff argued that “proceeding now and excluding unvaccinated jurors would violate the Seventh Amendment and the Jury Selection Act.” The Court indicated that it intended to reset the trial for March 7, 2022 as requested by the parties. On December 22, 2021, entered the Proposed Order Memorializing Rulings From First Pretrial Conference that had been held on August 13, 2021. On January 3, 2022, the Court held a hearing in which trial procedures and trial viability were discussed, and the jury trial was vacated. The parties were ordered to meet and confer about the scheduling of a new jury trial. (Case No. 4:12-cv-03733; August 13, 2021, August 20, 2021, September 2, 2021, December 22, 2021 and January 3, 2022).
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).
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, On November 30, 2021, the Northern District of California jury returned its verdict, finding that some of the claims of the patents-in-suit were proven to be willfully infringed, based on induced and contributory infringement, most claims were not shown to be invalid, and the plaintiff was entitled to damages of $8,000,000.00 to reasonably compensate for the defendants’ infringement. (Case No. 3:19-cv-03770; October 27, 2021 and November 30, 2021).
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. On March, 1, 2021, the Court granted defendant’s motion for certification and a stay, until the Federal Circuit’s mandate issues, of the remaining claims that would otherwise proceed to trial. As part of its analysis, the Court agreed that there is no legal overlap between the remaining claims to be tried to a jury and the ones that have been certified but found that there is “significant” factual overlap. The Court stated that “the process of empaneling two juries to hear these same facts is overly burdensome . . . [and these] realities are especially true because of the pandemic.” The Court noted that jury trials in the District have been “rare and their timing unpredictable”, due to health risks, public health measures, and other concerns related to the COVID-19 pandemic, and drawing a constitutional jury pool, managing the venire, and protecting the health of the jury panel, court staff, and the litigants during trial is a challenge during the pandemic. Referring to the situation as “not possible to predict”, at best, the Court further noted that “it is entirely plausible that the parties would perform extensive trial preparation work only to have it called off if the public health situation deteriorates again.” (Case No. 3:18-cv-02848; December 22, 2020, January 9, 2021 and March 1, 2021).
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).
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).
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. On March 23, 2021, the Court granted defendant’s motion for summary judgment of invalidity for indefiniteness after permitting defendant to renew its motion in consideration of testimony that was heard from plaintiff’s expert on the issue during three days of a jury trial that commenced on March 10, 2020 but was vacated and declared a mistrial due to the COVID-19 pandemic and the issuance of the State of California’s stay-home order. Although the trial was terminated early due to the pandemic, the expert’s testimony was completed, and the Court indicated that “a subsequent trial is not an opportunity for [the expert] to change his opinions or supplement them with support he did not provide on the record at the first trial. The Court noted that the district’s “continuing moratorium on civil jury trials and backlog of criminal jury trials currently precludes scheduling a new trial in this matter.” (Case No. 3:17-cv-00183; March 16, 2020 and March 23, 2021).
NuVasive Inc. v. Alphatec Holdings Inc. – The U.S. District Court for the Southern District of California in San Diego issued an Order vacating the current trial schedule due to “the current state of the COVID-19 pandemic.” The jury trial had been set to begin on January 10, 2022. The parties were directed to provide the Court with a joint proposal for new trial dates and related deadlines. (Case No. 3:18-cv-00347; January 3, 2022).
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).
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).
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).
Floodbreak, LLC v. Art Metal Industries, LLC et al. – The U.S. District Court for the District of Connecticut in Bridgeport issued a Conference Memorandum and Order after holding a status conference, in part to address the impact of the omicron surge of the COVID-19 pandemic on the forthcoming jury trial. The Court advised the parties of its intent to continue the trial, which was currently scheduled to begin on January 11, 2022, due to the risk to public safety of spiking COVID-19 positivity rates in Connecticut. The Court indicated that, pursuant to the Court’s COVID-19 General Order re: Jury Selections and Trials, the jury trial is postponed until further order of the Court. (Case No. 3:18-cv-00503; January 5, 2022).
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. On April 19, 2021, the Court issued a docket entry resetting the jury trial to now begin on May 20, 2021. The parties were also instructed to submit a joint letter regarding “the screening questions for the COVID questionnaires” and a letter regarding the number of attorneys counsel are requesting to be present in the courtroom. (Case No. 1:15-cv-00842; July 2, 2020, July 15, 2020, October 13, 2020 and April 19, 2021).
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.” On December 4, 2020, the Court issued an Order resetting the jury trial to begin on September 7, 2021 at 9:30 a.m., and the pretrial conference set for August 20, 2021 at 9:00 a.m. On August 11, 2021, the Court issued a Memorandum Order re: Proposed Pretrial Order, in which it indicated that live witnesses are expected to be in person, not by video. The Court also indicated that it “does not expect to exclude anyone from the courtroom.” On August 28, 2021, the Court entered the Joint Proposed Final Pretrial Order, which indicated that “[g]iven the evolving travel restrictions and guidelines related to the COVID-19 pandemic, the parties will meet-and-confer in good faith to address any accommodations necessary to facilitate witness participation at trial, including any adjustments to whether certain testimony will be presented live or via deposition transcripts.” On September 15, 2021, the District of Delaware jury returned its verdict finding that plaintiff was entitled to compensatory damages of $28,285,714.00 for its antitrust claims and $16,483,475.00 for its tortious interference claims. (Case No. 1:18-cv-01391; August 3, 2020, August 28, 2020, December 4, 2020, August 11, 2021, August 24, 2021 and September 15, 2021).
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).
NexStep Inc. v. Comcast Cable Communications LLC – The U.S. District Court for the District of Delaware in Wilmington issued an Order After Pretrial Conference, after a pretrial conference and consideration of the proposed pretrial order, relating to the jury trial is set to being on September 20, 2021 at 9:30 a.m. The parties were directed to submit a revised pretrial order to incorporate rulings made at the pretrial conference. In the proposed pretrial order, the parties included their competing views, in light of the COVID-19 pandemic, regarding streaming the proceedings to individuals not in the courtroom and allowing witnesses to testify via live videoconference. On September 23, 2021, the District of Delaware jury returned its verdict finding that defendant did not literally infringe the asserted patents, but that it did infringe one of the asserted patents under the doctrine of equivalents. With respect to the patent found to be infringed, the jury found that defendant did not prove that patent invalid by clear and convincing evidence. (Case No. 1:19-cv-01031; September 3, 2021 and September 23, 2021).
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).
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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).
Finjan, Inc. v. Rapid7, Inc., et al. – The U.S. District Court for the District of Delaware in Wilmington held a hearing on January 15, 2021 in response to the parties’ joint letter seeking guidance from the Court “regarding whether, in light of the current situation surrounding the COVID-19 pandemic, there is any chance that the [February 22, 2021] scheduled jury trial can go forward.” The parties argued that “given the diminishing likelihood that jury trials will resume in February, it would be in the interest of the parties and the Court to postpone the trial in this matter until sometime in the fall, preferably September or October of 2021, at the Court’s convenience.” The Court ruled that the pretrial conference and jury trial will be rescheduled, and directed the parties to file a joint letter. On February 19, 2021, the Court held a telephone conference during which the pretrial conference was set for October 4, 2021 at 2 p.m. (EDT) and the six-day jury trial set to begin on October 25, 2021 at 9:30 a.m. (EDT), to be held before Magistrate Judge Burke which the parties had consented to previously. (Case No. 1:18-cv-01519; January 15, 2020 and February 19, 2021).
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. On March 9, 2021, the Court issued an Order postponing the jury trial and stating that “a new trial date will be set after it becomes clear when jury trials will resume in the District of Delaware.” On April 15, 2021, the Court set the jury trial for the week of November 15, 2021. In an Order, issued on August 9, 2021, setting an off-the-record meeting to discuss evidentiary issues for the upcoming trial, the Court indicated that the meeting will be held at the National Courts Building in Washington D.C. “unless the state of the COVID-19 pandemic is such that an in-person meeting is not advisable, in which case the meeting will be conducted by teleconference.” (Case No. 1:16-cv-00153; June 30, 2020, July 17, 2020, July 24, 2020, August 24, 2020, March 9, 2021, April 15, 2021 and August 9, 2021).
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).
Par Pharmaceutical, Inc. et al v. Eagle Pharmaceuticals, Inc. – The U.S. District Court for the District of Delaware in Wilmington entered a Stipulated Order To Permit Live Trial Testimony, allowing defendant’s expert witness to testify remotely at the in-person bench trial. The expert resides in Germany and anticipates that it would be extremely difficult, if not impossible, to attend the July 7, 2021 trial in person “in light of the ongoing health risks and travel restrictions resulting from the COVID-19 pandemic.” Instead, the witness will travel to Brussels, Belgium to testify live, but remotely, via contemporaneous audio and visual transmission that will be provided by TrialGraphix via its Zoom trial platform. The Order further required that the expert “shall not use any virtual backgrounds unless otherwise agreed upon by the parties and the Court”, and once examination has commenced “there shall be no unrecorded or unnoted communications between [the expert] and any person (including any counsel), by any means, including through telephone, electronic chat, email, or text message, while the trial is on the record.” When trial is off the record, the expert and counsel may communicate by “any means, such as in a ‘break-out room’ or by telephone call or email, as would be permitted for in-person testimony.” The expert was ordered not to communicate with anyone else regarding the substance of his testimony, absent express permission from the Court, once cross examination has begun until he has concluded his testimony on cross examination. On September 16, 2021, the Court issued its Final Judgment entering judgment in favor of defendant and against plaintiff with respect to the infringement allegations, and dismissing without prejudice defendant’s counterclaims of patent invalidity and unenforceability. (Case No. 1:18-cv-00823; July 6, 2021 and September 16, 2021).
Pharmacyclics LLC et al v. Alvogen Pine Brook LLC et al. – The U.S. District Court for the District of Delaware in Wilmington issued a Memorandum Opinion, after having held a seven-day bench trial in October 2020 during the COVID-19 pandemic, finding that all the asserted claims of the asserted patents are not invalid and that defendant infringes each of the asserted claims. (Case No. 1:19-cv-00434; August 19, 2021).
Steuben Foods, Inc. v. Shibuya Hoppmann Corporation et al. – The U.S. District Court for the District of Delaware in Wilmington denied the parties’ proposed stipulation to extend time, indicating that the jury trial set to begin on November 15, 2021 had been on the calendar for many months and the Court needs the proposed voir dire, jury instructions, and special verdict form by October 20, 2021. On November 22, 2021, the District of Delaware jury returned its verdict that the asserted claims of the patents-in-suit were proven to be infringed, were not proven by clear and convincing evidence to be invalid and that the plaintiff was entitled to reasonable royalty damages of $38,322,283.78. (Case No. 1:19-cv-02181; October 18, 2021 and November 22, 2021).