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Minerva Surgical, Inc. v. Hologic, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Order After Pretrial Conference adopting the Proposed Pretrial Order as modified by the discussion at the pretrial conference. Each side may only have four people in the courtroom at any given time, and only three persons are permitted at counsel table per side at any given time. The Court further stated that it may modify the limitations at any time or “impose additional restrictions to ensure the safety of court personnel, the jury, and all persons attending trial.” In accordance with the July 13, 2021 Revised Standing Order of the Court, it was also noted that “persons who have been fully vaccinated against COVID-19 are no longer required to wear a mask in Court,” however the Court indicated that “Judges retain the discretion to impose mask requirements in the courtroom as they see fit.” The Court granted defendants’ request for leave to allow third party witnesses to testify live at trial via remote means due to the COVID-19 pandemic. The jury trial is scheduled to begin on August 9, 2021 at 9:30 a.m. On July 23, 2021, the Court granted defendants’ motion for summary judgment of invalidity and Judgment was entered in favor of defendants. (Case No. 1-18-cv-00217, presiding before Senior District Judge Joseph F. Bataillon; July 13, 2021, July 23, 2021 and July 26, 2021).
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).
Shire ViroPharma Inc. v. CSL Behring LLC Doc #308 - June 4, 2020
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).
ArcherDX, LLC et al v. QIAGEN Sciences, LLC et al. – The U.S. District Court for the District of Delaware in Wilmington denied defendants’ request for a continuance of the August 23, 2021 jury trial date due to the CDC travel restrictions preventing individuals from Germany and the United Kingdom from travelling to the United States which, it was argued, would adversely affect the ability to present defendants’ case as several witnesses and client representative are located in those countries. Plaintiff responded that defendants assumed that it is impossible for its foreign witnesses to travel to the United States without having attempted to obtain permission to enter the country and failed “to address why the few foreign witnesses they contend are necessary for this US dispute cannot appear live by video.” On August 6, 2021, the Court issued an Order Regarding Live Trial Testimony Received By Remote Means pursuant to the parties’ Stipulation. Seeking certainty with respect to the ability for foreign corporate representatives or witnesses to participate in the upcoming trial, particularly given that “the recent rise of Covid-19 cases due to the Delta variant has cast further uncertainty on the quarantine rules of each country, and there is no date being reported for the potential lifting of the current travel ban”, the parties entered a Stipulation “solely intended to approve the use of remote means to facilitate the live testimony of certain witnesses and to facilitate attendance by individuals in excess of the Court’s courtroom limitations.” The specific parameters for the testimony to be received live via remote means will be discussed between the parties and the vendor, and presented to the Court for further discussion prior to the pretrial conference. The matter is scheduled to go to trial by jury on August 23, 2021, and the trial is scheduled to be conducted in-person. On August 20, 2021, the Court issued an Order After Pretrial Conference ordering, among other things, that each side may have no more than three (3) people in the courtroom at any given time and individuals in the courtroom must wear a mask at all times and the mask must be worn properly (i.e., covering the person’s nose and mouth), however, vaccinated counsel may remove his or her mask when examining a witness or making an argument. (Case No. 1:18-cv-01019; July 9, 2021, August 6, 2021 and August 20, 2021).
Chugai Pharma. Co., Ltd. a/k/a Chugai Seiyaku Kabushiki Kaisha v. Alexion Pharma., Inc. – The U.S. District Court for the District of Delaware in Wilmington granted the defendant’s request to continue the jury trial, currently scheduled to start on January 3, 2022, due to the COVID-19 pandemic. The defendant raised a number of “new developments” that occurred after the Court held a pretrial conference in the matter on December 14, 2021. In particular, the defendant noted that “[o]ver the last few days, scientists have recognized that the U.S. is experiencing a new outbreak of COVID-19, triggered by the new Omicron variant.” In order to protect the health of potential jurors, Court personnel, and witnesses and attorneys who are traveling all over the U.S., Europe, and Japan, the defendant requested that the Court postpone the trial since the Omicron variant is believed to be more transmissible than previous COVID strains and “the Center for Disease Control is predicting a surge in infections as soon as January.” The jury trial was postponed and reset to commence on either February 14th or 28th, 2022, provided the defendant did not ask for a later date. On January 5, 2022, the Court issued an Oral Order resetting the 5-day jury trial for February 14, 2022 at 9:30 a.m. (Case No. 1:18-cv-01802; December 27, 2021 and January 5, 2022).
TriMed Inc. v. Arthrex Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Order after Pretrial Conference with respect to a bench trial set to begin on September 14, 2020 at 9:00 a.m. Among the items covered in the Order, the Court ruled that “[e]ach side may have no more than three (3) attorneys and one (1) support person in the courtroom at any given time, and only two (2) persons are permitted at counsel table per side at any given time . . . [and in] its discretion, the Court may modify these limitations at any time or impose additional restrictions to ensure the safety of court personnel and all persons attending trial.” In addition, it was ordered that all persons in the courtroom must wear a mask at all times, unless excused by the Court, and “the mask must be worn properly (i.e., covering the person’s nose and mouth).” On March 29, 2021, the Court issued a Memorandum Opinion revising the Court’s previous construction of a disputed claim term. As part of its analysis, the Court referred to a demonstrative that it created during the three-day bench trial in “an effort to guide and focus a discussion that was being held remotely during the COVID-19 pandemic.” After re-examining the intrinsic evidence the Court revised its construction of the disputed term in a way that the parties agreed requires a finding of non-infringement and dismissal of the invalidity counterclaim as moot. On August 27, 2021, the District of Delaware jury returned its verdict, finding that the asserted patents were willfully infringed and were not proven invalid by clear and convincing evidence, and that plaintiff was entitled to damages of $841,756.00 in lost profits, $1,593,762.00 in royalties for sales in the United States and $2,240.303.00 in royalties for sales outside the United States. (Case No. 1:18-cv-01019; July 9, 2021, August 6, 2021, August 20, 2021 and August 27, 2021).
Sunoco Partners Marketing & Terminals LP v. Powder Springs Logistics, LLC, et al. – The U.S. District Court for the District of Delaware in Wilmington sua sponte ordered the parties to submit a joint status report whether the trial, scheduled to begin on July 20, 2020, could proceed in light of the COVID-19 pandemic. In particular, the parties were directed to meet and confer and submit a joint status report, “advising the Court of their views on, among other things: (i) whether they believe trial can and should proceed on July 20; (ii) whether they believe they have a right to a jury trial and, if so, whether they are willing to waive that right in favor of a bench trial; and (iii) whether, if the trial proceeds on July 20, any witnesses might request to appear by video or other remote technology rather than travel to the courtroom.” The Court will hold a status teleconference on July 15 at 11 a.m. (EDT). The trial is scheduled to begin on August 3, 2020 and the pretrial conference is scheduled for July 27, 2020 at 2 p.m. (EDT). After giving “due consideration to the parties’ input and preferences, as well as the physical and staff limitations of the courtroom and courthouse, and mindful of its utmost duty to take all reasonable precautions to protect the health and safety of the citizens who will be called as jurors, the Court  decided to impose the type of restrictions on in-court participation it was contemplating in its questions to the parties.” In particular, the August jury trial will be conducted with no live witnesses testifying in the courtroom, limitations on the representatives in the courtroom for the parties, a simulcast videp feed into another room in the courthouse providing access to interested members of the public and press and other trial members who are not using one of the allotted courtroom slots, and any other special arrangements needed to be made with the Court’s staff to allow the trial to take place partially-remotely, including taking all “necessary steps to eliminate paper exhibits (i.e., absent compelling reason, all exhibits shall be displayed to witnesses and the jury electronically.)” The Court further indicated that it was “working with a District-wide committee to develop protocols for jury selection and for allowing the jury, Court staff, and counsel to interact safely in the courtroom.” It will be providing “further guidance in the coming weeks” how the trial “will differ from the pre-pandemic trials”; for example, “how voir dire will be conducted, where the jury will be seated, where the jury will go during breaks and deliberations, where counsel tables will be placed, how to ensure that exhibits needed for cross-examination are kept secure until needed, whether counsel will be permitted to be present in the same room with witnesses who are being examined remotely, face covering and any other PPE requirements for those  in the courtroom.” Following a July 13, 2020 teleconference, the jury trial scheduled to begin on August 3, 2020 was continued. In a July 17, 2020 Order, the Court directed the parties to meet and confer and submit a joint status report providing their views about when the trial should be set for trial. In addition, the pretrial conference scheduled for July 27, 2020 at 2:00 p.m. (EDT) was converted to a teleconference. On August 20, 2020, the Court entered an Oral Order after “[h]aving reviewed the parties' August 14, 2020 joint status report (D.I. 604), and having considered the parties' positions as well as the ongoing uncertainty regarding resumption of civil jury trials and the uncertainty of the Court's schedule,” ordering the parties to “meet and confer and, on September 4, submit another joint status report, providing their updated positions as to how this case should now proceed.” On October 7, 2020, the Court issued an Oral Order directing the parties to meet and confer and submit another joint status report advising the Court of their and their witnesses' availability for a jury trial to be held between November 30 and December 10. The parties were also advised that the Court has not yet decided not to hold trial beginning on November 5 (with jury selection on November 2 and/or 3) but is considering other options. The Court also informed the parties that it had issued its Jury Trial Restart Guidelines, available on the Court's website, which the Court intends to discuss with the parties when trial is scheduled. After numerous discussions with the parties regarding whether and when to schedule jury trial, the Court indicated it has “found (unfortunately) no date that is reasonable and available to all parties and to the Court.” Therefore, the Court ordered that the trial be continued until a date to be determined, “most likely in 2021 (and certainly NOT in 2020).” It was also noted that “any trial may need to be further rescheduled due to further developments, including the evolving public health situation and other cases (especially criminal cases) that may require trial.” On August 25, 2021, the Court issued an Oral Order setting the final pretrial conference to be held on November 12, 2021 and jury selection and jury trial to be held on November 23, 2021 beginning at 9:00 a.m. On December 3, 2021, the District of Delaware jury returned its verdict, finding that asserted claims of the patents-in-suit were proven to be willfully infringed, the claims were not shown to be invalid, and the plaintiff was entitled to damages of $12,200,958.40 to reasonably compensate for the defendants’ infringement. (Case No. 1:17-cv-01390; June 9, 2020, June 24, 2020, July 2, 2020, July 13, 2020, July 17, 2020, August 20, 2020, October 7, 2020, October 13, 2020, August 25, 2021, October 26, 2021 and December 3, 2021).
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). On July 16, 2021, the District of Delaware jury returned its verdict, finding that the patents were not infringed and not proven but that the remaining asserted claims were not shown to be invalid, and that plaintiff was entitled to $1,440,000 of actual loss damages and $1,440,000.00 for punitive damages caused by defendant’s false advertising. The Court entered Judgment Following Jury Verdict on July 16, 2021. (Case No. 1:18-cv-00172; June 29, 2020, July 2, 2020, September 25, 2020, November 5, 2020, June 29, 2021 and July 16, 2021).
TRUSTD, Inc. v. Next Caller Inc. Oral Order - November 5, 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.” On February 9, 2021, the Court sua sponte issued an Oral Order, in light of the ongoing impact of the COVID-19 pandemic, directing the parties to meet and confer and submit a joint status report providing their updated positions on whether trial should go forward in April as scheduled and, if so, what (if any) accommodations should be made. After reviewing the parties joint letter submission indicating that “the parties agree that an in-person jury trial will not be safe or feasible on April 12, 2021, given the ongoing COVID-19 pandemic”, the Court issued an Order rescheduling the jury trial to now begin (tentatively) on July 26, 2021. The Court recognizing that a bench trial addressing defendant's equitable defenses remains scheduled for the same period in which the jury trial was to occur, indicated that it is available and willing to hold this bench trial during the week of April 19 provided that such a trial would be fully remote. On March 17, 2021, after reviewing the parties joint status report submission, the Court ordered that the bench trial on defendant's affirmative defenses will be held in July during the same period as the jury trial. (Case No. 1:17-cv-01646; November 13, 2020, February 9, 2021, February 12, 2021 and March 17, 2021).
SZ DJI Technology Co., Ltd., et al. v. Autel Robotics USA LLC, et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order resetting the jury trial to be held from August 16 to August 20, 2021. On August 10, 2021 the Court granted plaintiff’s request to allow a witness to testify at trial, who was not identified on the original witness list, in part because plaintiff represented “that she is the only current employee who could appear live at trial to introduce the company to the jury” since all the other witnesses on the current witness list “are not available to appear live at trial in Delaware because they have either left the company or are based in China and are subject to travel restrictions due to the COVID-19 pandemic.” On August 17, 2021, the Court entered a Stipulation of Dismissal filed by the parties pursuant to Federal Rule of Civil Procedure 41(a)(1). On October 26, 2021, the Court issued an Oral Order indicating, among other things, that it would be sending out its “now standard ‘COVID questionnaire’ to the members of the jury pool but will not be sending any further questionnaire to the pool.” (Case No. 1:17-cv-01390; June 9, 2020, June 24, 2020, July 2, 2020, July 13, 2020, July 17, 2020, August 20, 2020, October 7, 2020, October 13, 2020, August 25, 2021 and October 26, 2021).
ParkerVision, Inc. v. Qualcomm Inc., et al. – The U.S. District Court for the Middle District of Florida in Orlando issued an Order indicating that “the Court’s trial calendar is congested with criminal trials through at least July 2021 with new indictments being returned every week . . . [and] cannot devote every remaining waking hour to this case since MDL cases have also returned to roost.” As such, the Court said it may take many months before the Court can adequately address “the deluge of motions filed” and “it is extremely unlikely this case will be tried before November or December 2021, if then.” On April 21, 2021, the Court issued a Notice cancelling the jury trial currently scheduled for the July trial term and the final pretrial conference scheduled for June 15, 2021, indicating they will be rescheduled at a later date. The (Case No. 6:14-cv-00687; March 26, 2021 and April 21, 2021).
Pierce Mfg., Inc., et al. v. E-One, Inc., et al. – The U.S. District Court for the Middle District of Florida in Tampa issued a notice to the parties in cases presiding before Judge Thomas P. Barber regarding jury trials. The notice states that “Judge Barber is interested in attempting short, ‘in person’ civil jury trials (no more than two days including jury selection) in late September/October. Such cases may be reset for trial during this period, regardless of any previously set trial dates, as long as ALL participants, including witnesses, are comfortable proceeding “in person.” If you believe you have a case that meets these parameters and would like to discuss the possibility of proceeding to trial in late September/October, please contact Courtroom Deputy Sonya Cohn by email (email@example.com) no later than AUGUST 31, 2020. Judge Barber will then set a Status Conference, most likely by ZOOM, to further discuss the case. If, during the Status Conference, all participants agree the case is ready and appropriate for a jury trial, the trial will take place on a “date certain” that is mutually agreed upon by the parties and the Court.” The notice goes on to say that “[c]ounsel are encouraged to take advantage of this opportunity. Once jury trials resume, it is anticipated that criminal cases will consume most, if not all, available trial time for several months.” The jury trial was set to begin on January 25, 2020 and the Status Conference was set for December 9, 2020 at 01:30 PM via Zoom. In an October 20, 2020 Notice, the final pretrial conference was reset for February 4, 2021 and the trial was set for February 22, 2021 at 9:00 a.m. After holding a status conference requested by the parties to determine whether the February 22, 2021 trial date remains feasible in light of the ongoing COVID-19 pandemic, the Court issued a Notice cancelling the pretrial conference and the trial. During a hearing held on March 10, 2021, the jury trial was reset for June 7, 2021. On June 15, 2021, the Middle District of Florida jury returned its verdict, finding that the patents were willfully infringed, that one asserted was proven invalid but that the remaining asserted claims were not shown to be invalid, and that plaintiff was entitled to lost profits damages of $1,287,254 and reasonable royalty damages of $170,500 on its claim of patent infringement. On July 28, 2021, the Court entered a Judgment In A Civil Case for the plaintiffs and against Defendants with respect to the issues of infringement, willful infringement, and invalidity due to obviousness, non-enablement, and written description and finding plaintiffs shall recover the sum of $1,458,354. (Case No. 8:18-cv-00617; August 20, 2020, September 3, 2020, January 8, 2021, March 10, 2021, June 15, 2021 and July 28, 2021).
Pierce Mfg., Inc., et. al. v. E-One, Inc., et. al. – The U.S. District Court for the Middle District of Florida in Tampa ordered, over plaintiffs’ objections, that the November 5, 2018 preliminary injunction be modified to allow defendant E-One, Inc. to sell its Metro 100 single rear axle quint during the pendency of any delay caused by the COVID-19 pandemic, and further ordered the terms governing the interim sales and the amount of damages, if applicable, that will be awarded for those interim sales. (Case No. 8:18-cv-00617, transferred on June 8, 2020 to District Judge Thomas P. Barber; April 8, 2020).
BPI Sports, LLC v. ThermoLife Int’l, LLC, et al. – The U.S. District Court for the Southern District of Florida in Ft. Lauderdale issued a Second Amended Scheduling Order resetting the jury trial to begin on April 26, 2021, pursuant to Administrative Order 2020-76, In re: Coronavirus Public Emergency, Seventh Order Concerning Jury Trials And Other Proceedings, which ordered, among other things, that all jury trials in the Southern District of Florida scheduled to begin on or after March 30, 2020, are continued until April 5, 2021. (Case No. 0:19-cv-60505; December 1, 2020).
Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta continued the trial scheduled to begin on June 1, 2020 to August 1, 2020, due to COVID-19. The Court held a teleconference on June 9, 2020 with the parties to discuss the upcoming August jury trial and COVID-19 pandemic guidelines. The parties were directed to inform the Court by June 12th whether they would agree to have a bench trial. If a bench trial is not a possibility, the Court indicated that the jury trial will be continued to October 19-30th, with all other deadlines remaining the same. The jury trial was reset for February 1, 2021 at 9:30 a.m. (EDT). On January 27, 2021, the Court issued a Notice setting the jury trial for September 8, 2021 at 9:30 a.m. On September 22, 2021, the Northern District of Georgia returned its verdict in favor of plaintiff finding infringement and awarding damages in the amount of $2,100,000.00. (Case No. 1:12-cv-04123; May 4, 2020, June 9, 2020, June 18, 2020, January 27, 2021, and September 23, 2021).
Acceleron, LLC v. Dell Inc. Second Amended General Order - May 1, 2020
Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:12-cv-04123, presiding before District Judge Timothy C. Batten, Sr.; April 1, 2020).
Intellectual Sporting Goods, LLC v. StarPro Greens, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:19-cv-04161, presiding before District Judge Timothy C. Batten, Sr.; March 20, 2020).
Rehco, LLC v. Spin Master, Ltd. – The U.S. District Court for the Northern District of Illinois in Chicago denied the plaintiff’s motion to server because it was not persuaded that it would facilitate settlement, streamline future proceedings, or conserve judicial resources or costs to the parties, instead it would result in two separate additional appeals, rather than a single appeal of both the patent infringement and breach of contract claims. The Court set the case for a retrial on plaintiff's breach of contract claim on March 15, 2021 at 10:00 a.m., and instructed the parties to meet and confer and email the Courtroom Deputy about potential COVID−19 protocols including whether witnesses will appear in person for trial or via video−conferencing. In light of the Ninth Amended General Order 20−0012, in response to the COVID-19 pandemic, a telephonic status hearing was set for January 22, 2021 at 11:00 a.m. to discuss trial dates, severance of claims and protocols. On March 14, 2021, the Court vacated the current jury trial date of April 26, 2021 and reset the trial date to May 3, 2021 at 9:30 a.m. (CDT), due to a conflict with a scheduled trial before the Court in a criminal case. The Court further indicate that “[p]rospective jurors, trial counsel, and witnesses who will be present in court for more than two days will be required to report two business days before the start date of the trial for coronavirus testing and will be subject to retesting at three−to−four−day intervals during the trial depending on its length.” (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020, November 4, 2020 and March 14, 2021).
Trading Techs. Int'l, Inc. v. BGC Partners, Inc. – The U.S. District Court for the Northern District of Illinois’s Eastern Division issued a Minute Docket Entry indicating that the Court's Trial system adopted during the COVID−19 pandemic has the jury beginning on August 6, 2021. On September 7, 2021, the Northern District of Illinois jury returned its verdict, finding that the patents were not proven invalid and that they were infringed, but not willfully infringed, and that plaintiff was entitled to damages of $6,610,985. (Case No. 1:10-cv-00715; July 16, 2021 and September 7, 2021).
NeuroGrafix, et al. v. Brainlab, Inc., et al. – The U.S. District Court for the Northern District of Illinois in Chicago sua sponte vacated the June 1, 2020 trial date and the May 19, 2020 final pretrial conference. The Court advised the parties that, upon resumption of regular court proceedings (possibly in early June), “the district will be prioritizing criminal jury trials involving defendants in custody, and then (likely) criminal trials involving defendants not in custody that had to be moved due to the suspension of court proceedings, with civil jury trials getting a lower priority in the near term.” The Court further indicated that if it had to predict, the trial date likely will have to be reset to late summer at the very earliest. However, it was noted that “there may be significantly greater leeway regarding an earlier trial date were the parties to agree to a bench trial, though the Court understands that each side has a right to a jury trial and is perfectly fine with either a jury trial or a bench trial.” In a previous order on April 17, 2020, terminating plaintiffs' “emergency” motion for clarification stemming from the court's earlier invocation of the so-called advocate-witness rule, the Court rejected an apparent contention (among other grounds) that the coronavirus pandemic is an extraordinary circumstance that should lead the Court to set aside the advocate-witness rule for purposes of trial. In that earlier order the Court found that “[t]he health-related considerations that plaintiffs identify are not a basis to overturn this long-established rule of professional conduct, which has a direct bearing on the opposing party's right to have a fair trial, and in any event those concerns can be dealt with by other means.” In a September 4, 2020 Minute entry, the Court set the pretrial conference for October 23, 2020 to be held via video and directed the parties to advise the Court in writing by September 18, 2020 whether the case will proceed by jury trial or bench trial. During a status hearing held on October 8, 2020, the Court indicated that the jury trial will likely begin on November 3, 2020. The parties were ordered to meet in person on October 9, 2020 in the courtroom, with the Court indicating that attendees must wear masks, regarding the list of witnesses that will be testifying at the trial and if the testimony will be in person, by video, or by deposition. The parties were further directed to provide a complete and comprehensive list at the start of the trial logistics meeting being held the same day because the Court needed the information to plan for trial during the pandemic. After receiving an “utterly incomprehensible and partially illegible” witness list submission, the parties were directed to provide “for planning purposes” a legible list identifying for each side: (1) the witnesses it intends to call; (2) the city and state where the witness resides; (3) whether the witness's testimony will be presented in person, by remote video, or by deposition; and (4) any objections by the other side to the calling of the witness (without responses). The jury trial began on November 3, 2020, however a mistrial was granted on November 4, 2020 upon plaintiff's oral motion for the reasons stated on the record. The remaining jury trial dates were vacated and the jury trial was continued until March 1, 2021 at 9:45 a.m. (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020 and November 4, 2020).
Swivel Rental & Supply, LLC v. Petro Pull, LLC, et al. – The U.S. District Court for the Western District of Louisiana in Lafayette issued Minutes following a telephone conference with the parties during which concerns regarding the COVID-19 pandemic were discussed. The jury trial was reset from February 22, 2021 to April 19, 2021, and the pretrial conference was reset from January 29, 2021 to April 1, 2021. In addition, the possibility of a bench trial was discussed, which counsel indicated he would discuss with his client. On March 10, 2021, the Court ordered that the parties Joint Motion to Waive Jury Trial is granted and the jury demand is waived so that trial may proceed as a bench trial on April 19, 2021. (Case No. 6:18-cv-01141; December 1, 2020 and March 10, 2021).
Bio-Rad Labs., Inc., et al. v. Stilla Techs., Inc., et al. – The U.S. District Court for the District of Massachusetts in Boston granted plaintiff’s motion to Adopt Pretrial Schedule, but adopted defendant’s request that the trial ready date be pushed out from May 2021 to a later date by placing the case on the Court’s running trial list for July 2021. The defendant argued that the plaintiff’s “purported goal of a May trial date” was not “feasible” for several reasons, including that it was “unlikely” that the case could proceed to trial at that time because of District’s suspension of jury trials due to the COVID-19 pandemic and the resulting backlog of high priority cases such as criminal trials. In the Order, the Court stated that there will be no further continuances. (Case No. 1:19-cv-11587; December 18, 2020).
Inline Plastics Corp. v. Lacerta Group, Inc. – The U.S. District Court for the District of Massachusetts denied defendant’s Motion To Continue the trial. The Court indicated that it will assess the COVID situation after the new year and then decide whether it will be safe to conduct the jury trial on January 31, 2022. Counsel were directed to confer with their clients to determine whether they have any objection to seating only vaccinated jurors. The Court further noted that if the case was continued the next available date is January 23, 2023. (Case No. 4:18-cv-11631; December 23, 2021).
Ford Motor Company v. Versata Software, Inc., et al. – The U.S. District Court for the Eastern District of Michigan in Flint terminated motions in limine filed by both plaintiff and defendant because ”developments in the case” since their filing may necessitate revisions or supplements to the motions. The Court noted that it had allowed the defendant to file a supplemental expert report and permitted additional expert discovery that might result in additional motion practice. It also recognized that, due to the COVID-19 pandemic, the Court has temporarily suspended all jury trials and adjourned all dates in this action and while it intends to schedule the case for trial at the first available opportunity, it does not know when it will be able to do so. The Court also indicated that it will hold a status conference with the parties to discuss a schedule for filing renewed motions in limine after completion of the additional discovery, and once the Court is in a better position to provide firm dates for a pretrial conference and trial. On December 10, 2021, the Court held a status conference during which the trial was set to commence on or about March 2, 2022. On December 22, 2021, the Court issued an Order Adjourning Trial Schedule And Addressing Future Trial Schedule, adjourning the trial date and other previously scheduled dates after being contacted by counsel for both parties jointly by email to request an adjournment of the scheduled trial date due to irreconcilable scheduling conflicts of critical expert witnesses and the parties’ lead trial counsels. The Court stressed to counsel that “it does not have any flexibility to pick a particular trial date for this matter (or any civil matter) that will be most convenient for the parties, witnesses, and counsel . . . [and], with respect to the next-assigned trial date, this case will proceed to trial on that date regardless of any scheduling conflicts that may exist with the parties’ counsel or witnesses.” The Court further instructed the parties that they “should therefore have multiple lead trial counsels prepared to try the case on that date and be prepared to present witness testimony by video if witnesses have scheduling conflicts that prevent them from testifying live at trial.” (Case No. 2:15-cv-10628; February 25, 2021, December 10, 2021 and December 22, 2021).
Perrigo Company v. United States of America – On April 28, 2020, the U.S. District Court for the Western District of Michigan in Grand Rapids granted in part a Joint Motion by cancelling the bench trial set to begin on May 26, 2020. In their Joint Motion, the parties expressed concern that the trial cannot proceed safely on the current schedule and “[b]oth sides agree that the trial should not proceed in-person as scheduled.” The Court did not “share the pessimism of the parties regarding the ability to conduct a bench trial safely in late May and early June . . . [but it acknowledged] that having counsel travel from two hard hit metropolitan areas, and the need to work with witnesses coming from multiple out-of-town locations creates unique challenges.” Although the Court acknowledged having recently “gotten considerable practice with video hearing technology,” it was convinced a bench trial like this one could not effectively proceed by video. It would need to be an in-person trial, “in the Court’s view, to assure fairness, effectiveness and efficiency for the parties, the Court and the public.” In particular, the Court noted that credibility issues are easier with in-person testimony and it could not “imagine a trial where all witnesses were examined by remote video, particularly with the mass of exhibits in play here and the technical complexity of some of the issues.” As for rescheduling, the Court indicated it would address that later as its own post-Covid calendar takes shape, particularly given that all civil cases will have to wait for an anticipated backlog of criminal jury trials to clear. (Case No. 1:17-cv-00737; April 28, 2020).
Enslein v. Di Mase et al. – The U.S. District Court for the Western District of Missouri in Kansas City granted in part and denied in part one of the defendant’s motion to stay execution of a $24 million judgment against him and others, ordering the defendant to post a $2 million bond despite arguments of coronavirus-related “extreme hardship”. The defendant argued, among other things, that he is unable to meet and consult with professionals to obtain a bond or discuss alternative options, and further pointed out that several federal agencies have suspended enforcement of collection actions during the COVID-19 pandemic. As part of its response, Plaintiff argued defendant had not established he was entitled to an unsecured stay, and instead, defendant’s inability to pay and the potential complexity of collection during the COVID-19 pandemic should weigh against an unsecured stay. (Case No. 4:15-cv-09020; May 4, 2020).
Composite Resources, Inc. v. Recon Medical, LLC – The U.S. District Court for the District of Nevada in Las Vegas granted plaintiff’s motion to amend the pretrial order to allow the listing of a witness that was purportedly inadvertently omitted. The Court found that granting the motion would not cause substantial injury to defendant or inconvenience for the Court, and denying the motion would result in injustice because plaintiff would be unable to put on its damages expert at trial. As part of its analysis of the four factors to be considered, the Court found “allowing amendment will not adversely impact the trial, which has been rescheduled several times due to the COVID-19 pandemic and is currently set for November 29, 2021.” On October 22, 2021, the Court entered a Minute Order indicating that the Court is in the process of “resuming trials” and that as cases “resolve or move off the [the] trial stack, your placement on that stack will move up.” On November 8, 2021, the Court denied the defendant’s motion to dismiss the case under the anti-claim-splitting doctrine, deciding to move forward with the jury trial regarding the request for injunctive relief on the patent infringement claim as opposed to requiring plaintiff to seek the relief in bankruptcy court, after the trial had been delayed because of the COVID-19 pandemic during which time the defendant filed for bankruptcy protection. On December 2, 2021, the District of Nevada jury returned its verdict, finding that the accused products infringed any of plaintiff’s patents. (Case No. 2:17-cv-01755; June 7, 2021, October 22, 2021, November 8, 2021 and December 2, 2021).
Mondis Tech. Ltd., et al. v. LG Electronics Inc., et al. – The U.S. District Court for the District of New Jersey in Newark denied defendant’s motion to stay the damages re-trial pending resolution of the interlocutory appeal on issues of liability. The Court noted that since the “motion arises during, and is impacted by, the COVID-19 crisis . . . it does not consider the issue of whether the re-trial itself should be stayed because, at the moment, that is moot.” In particular, because jury trials have been suspended through August 31, 2020, pursuant to the District’s Standing Order 2020-12, and “no one knows when jury trials will be permitted to resume.” Since it is unknown when a re-trial by jury will be permitted, the Court limited its consideration of the motion to a stay of supplementary discovery and motion practice in preparation for re-trial. (Case No. 2:15-cv-04431; June 11, 2020).
Mitsubishi Tanabe Pharma Corp., et al. v. Sandoz Inc., et al. – On April 28, 2020, the U.S. District Court for District of New Jersey in Trenton granted the joint request by the parties for a two-week extension for submission of trial briefs and proposed findings of fact and conclusions of law, from April 30 to May 14, 2020, in light of the presiding Judge’s prior adjournment of the May trial in the case. In a joint letter submitted on April 22, 2020, the parties indicated that following their discussion at the final pretrial conference regarding the potential impact of the COVID-19 pandemic on the trial, the defendant agreed to an extension of the regulatory stay for 120-days from the conclusion of the trial and the parties jointly requested that the Court set the commencement of a six-day trial for some time in July 2020, or as soon as practicable thereafter in light of the COVID-19 pandemic. In a May 12, 2020 Letter Order, the Court granted a request to extend the deadline from May 14 to May 21, 2020, for the parties to submit pretrial briefs and proposed findings of fact and conclusions of law. In a May 19, 2020 Letter Order, the Court granted a further one week extension May 21 to May 28, 2020. On April 24, 2020, the Court Ordered the agreed upon extension of the regulatory stay from September 29, 2020, until 120 days from the conclusion date of the trial. (Case No. 3:17-cv-05319, presiding before Chief Judge Freda L. Wolfson; April 24, 2020 & April 28, 2020 and May 12, 2020 & May 19, 2020).
Mitsubishi Letter - April 22, 2020
Mitsubishi Order - April 24, 202044
Mitsubishi Order - April 28, 2020
Mitsubishi Order - May 12, 2020
Mitsubishi Docket Entry - May 19, 2020
Amgen, Inc. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark issued a Text Order indicating the bench trial currently scheduled to commence June 14, 2021 shall be entirely remote, pursuant to the Court's Phase III Protocol, which provides that “bench trials shall be conducted via Zoom where possible.” On June 10, 2021, the Court issued a Remote Trial Protocol Order setting forth the procedures that will govern remote testimony. After conducting a nine-day bench trial from June 14 to June 25, 2021, and considering post trial briefing, the Court issued an Order on September 20, 2021 finding infringement in favor of plaintiff against all defendants with respect to two patents, finding non-infringement in favor of defendants with respect to another patent, and making some other infringement rulings regarding particular defendants with respect to two other patents. (Case No. 3:18-cv-11026; March 23, 2021, June 10, 2021 and September 20, 2021).
Applied Capital, Inc v. The ADT Corporation et al. – The U.S. District Court for the District of New Mexico in Albuquerque denied defendants' motion to continue trial, which is currently set to begin on April 5, 2021. The Court noted that it has been advised that the United States District Court for the District of New Mexico will resume conducting civil jury trials in March of this year, and having considered the parties’ positions it found that the motion to continue trial should be denied, without prejudice to reassertion if circumstances change, or if the district court does not resume civil jury trials in March 2021. On March 5, 2021, the Court issued an Ordersetting trial on June 16, 2021, at 9:00 a.m. (MDT) (Case No. 1:16-cv-00815; February 12, 2021 and March 5, 2021).
American Infertility of New York, PC d/b/a The Center for Human Reproduction et al v. CNY Fertility PLLC – The U.S. District Court for the Southern District of New York in Manhattan denied defendant’s motion to dismiss and granted plaintiff’s letter motion seeking reinstatement of the Initial Pretrial Conference. The Court rescheduled the conference for October 27, 2021 at 2:15 p.m., and noted that “[i]n light of the COVID-19 pandemic, the Court will not hold the conference in person.” (Case No. 1:21-cv-05566; October 12, 2021).
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. – On April 23, 2020, the U.S. District Court for the Southern District of New York in Manhattan sua sponte notified the parties that the Court intended to move forward with the trial set to start on May 26, 2020, or within two weeks of that date, and it was “not prepared to wait until the world is back to normal to get it done.” The Court highlighted it was a bench trial, and such trials "are the one type of proceeding that can go forward, even during a pandemic." In particular, the Court noted in a bench trial it can take testimony in writing (as it usually does at bench trials) and listen to cross examination conducted remotely. In addition, the Court indicated “witnesses who are located in other countries and cannot travel to court can have their depositions submitted instead - and I am sure that all the really relevant witnesses were deposed.” On April 24, 2020, the parties jointly submitted a letter in response to the April 23 Notice to Counsel indicating that they were “prepared and wish to move forward . . . but current travel and business restrictions make the logistics of doing so on May 26 uncertain.” The parties requested that the start of the trial be adjourned until the week of July 6, 2020, however “recognizing the constraints of the Court” the parties also confirmed that they could be available in the middle of June but they noted “there still may be some restrictions on travel in place at that time.” In a handwritten memo endorsed order on April 28, 2020, the Court stated “[o]k, the trial is adjourned to July 6, 2020. The Court will schedule a teleconference in the near future to discuss trial logistics.” In a May 14, 2020 Notice To Counsel, the Court scheduled a conference call for May 20, 2020 to discuss any concerns about the trial, given the parties preference for a trial in person, and the likely possibility that “stay at home orders and travel restrictions will not be lifted by July 6 . . [and] that some or all of the testimony at [the] trial will have to be taken remotely.” The Court reiterated that it will “take direct testimony of witnesses under any party’s control in writing” and indicated that “the Court’s view [is] that cross examination via a video platform would allow [it] to make necessary credibility determinations.” The Court further stated that it was “not eager to hear that you don’t want to go to trial on your chosen date of July 6. We simply have to find a way to get this case tried.” In a May 28, 2020, Trial Procedures communication to Counsel the Court indicated that the entire trial will be “all remote” and that it will use TrialGraphix’s TRIALanywhere product for the trial. The decision to have all witnesses testify remotely was based on the draft protocols for Phase II re-entry which would require all individuals who traveled from abroad to quarantine for two weeks before being allowed to enter the courthouse. One of the proposals under consideration from the parties that was described as “eminently sensible” by the Court, was the shipping of sealed binders to witnesses. It was also being left to the parties to agree whether an attorney may be present with witnesses during their remote testimony, which might make it even easier to deal with exhibits. The Court stated it was open to an in-person real bench trial closing argument, if it were safe, with lead trial counsel coming to court after all the witnesses have been heard from, but it strongly discouraged bringing a lot of people to court for any such closing argument. The Pretrial Conference has been set for June 25, 2020 at 2 p.m. (EDT). The Final Pretrial Conference was held via remote video conference. The start time for the first day of trial, July 6, 2020, is 10:00 a.m. (EDT). (Case No. 1:17-cv-09922; April 23, 2020 & April 28, 2020, May 14, 2020, May 27, 2020, June 18, 2020 and June 25, 2020).