Trial - Page 3

Western District of Pennsylvania (Pittsburgh)

District Judge Cathy Bissoon

Cutsforth, Inc. v. Lemm Liquidating Co., LLC, et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh sua sponte stayed and administratively closed the case, postponed the jury trial from April 20, 2020 to October 26, 2020, and further amended the Pre-trial Scheduling Order. In a May 19, 2020 Text Order the Court stated “the COVID-19 pandemic continues to create barriers to resuming normal, in-person operations in our nation's courts. . . . [with no issue] more problematic than the resumption of jury trials . . . [because] there can be no doubt that from selection to deliberation, jury trials pose unique and potentially, unavoidable concerns during this pandemic.” The parties were ordered to file a joint notice, on or before June 15, 2020, indicating whether they jointly and voluntarily consent to waiving their right to a jury trial and to converting the case to a bench trial, without specifying who did or did not consent.  In a Second Amended Final Pretrial Order, the Court scheduled the 5 day jury trial for May 24, 2021, at 9:00 a.m. issued an Order, postponing the jury trial scheduled for Mary 24, 2021 until to January 10, 2022 at 9:00 a.m. (EST). The postponement was made in light of the COVID-19 pandemic and consistent with the "substance and tenor" of the Administrative Order Concerning Jury Trials And Certain Other Proceedings Relative To Covid-19 MATTERS issued on February 2, 2021 by the Honorable Judge Mark R. Hornak at Misc. No. 2:20−mc−394 (as updated), which ordered that all civil and criminal case jury selections and civil and criminal case jury trials in the Western District of Pennsylvania scheduled to begin before May 3, 2021 are continued pending further Order of the Court. The case was also stayed and administratively closed, until the Court resumes normal operations, and restrictions necessitated by the virus has have lapsed.  The Court further indicated that extensions of time to perform certain tasks will be granted liberally, particularly if such extensions are due in any way to illness or practical considerations caused by the COVID−19 pandemic. (Case No. 2:17-cv-01025; March 17, 2020, May 19, 2020, September 16, 2020 and February 11, 2021).

Lambeth Magnetic Structures LLC v. Seagate Technology Holdings Inc. et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh issued an Order, postponing the jury trial scheduled for June 21, 2021 until to February 7, 2022 at 9:00 a.m. (EST). The postponement was made in light of the COVID-19 pandemic and consistent with the "substance and tenor" of the Administrative Order Concerning Jury Trials And Certain Other Proceedings Relative To Covid-19 MATTERS issued on February 2, 2021 by the Honorable Judge Mark R. Hornak at Misc. No. 2:20−mc−394 (as updated), which ordered that all civil and criminal case jury selections and civil and criminal case jury trials in the Western District of Pennsylvania scheduled to begin before May 3, 2021 are continued pending further Order of the Court. The case was also stayed and administratively closed, until the Court resumes normal operations, and restrictions necessitated by the virus has have lapsed.  The Court further indicated that extensions of time to perform certain tasks will be granted liberally, particularly if such extensions are due in any way to illness or practical considerations caused by the COVID−19 pandemic. (Case No. 2:16-cv-00538; February 11, 2021).

District Judge Joy Flowers Conti

Sherwin-Williams Company V. PPG Industries, Inc. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh granted defendant’s motion to compel updated damages discovery about a potential non-infringing alternative product for its lost profit and reasonable royalty analysis. The Court had previously granted partial summary judgement to prevent the defendant’s damages expert from using the product in the proposed manner based upon a lack of factual evidence in the record, which had been limited to the period prior to Q2 2018. The Court found that its prior decisions did not resolve the current motion, however, because the court’s summary judgment and Daubert decisions did not address supplemental damages discovery or the period post-Q2 2018. The Court noted that it is now three years after the close of fact discovery, and “unfortunately, due to the Covid-19 pandemic, the trial has been continued and is not imminent.” The parties were found to have a duty to supplement damages discovery, even beyond the close of fact discovery, and the existence of non-infringing alternative products is relevant to the damages analysis. The Court further found that there will be no real prejudice, given the “unavoidable delay of the trial, the parties’ resources, and their litigious approach to the litigation.” The Court ruled that neither party’s expert may refer to the product as a non-infringing alternative prior to Q2 2018, based on the Court’s prior determinations, but if the market has changed since then “damages should be based on economic reality; not a market arbitrarily frozen in time by the original close of fact discovery in [the] litigation.”  On September 22, 2021, the Court issued an Order setting the jury trial for November 29, 2021 through December 10, 2021 at 9:30 a.m. The Court also set a telephonic status conference for September 30, 2021 at 11:00 a.m. to discuss scheduling matters and resolution of outstanding issues prior to trial. (Case No. 2:17-cv-01023; January 7, 2021 and September 22, 2021).

Eastern District of Texas (Marshall Division)

Chief District Judge J. Rodney Gilstrap

Acorn Semi LLC v. Samsung Electronics Co. Ltd. et al. The U.S. District Court for the Eastern District of Texas’s Marshall Division issued an Order on Pretrial Motions and Motions In Limine, summarizing the Court’s rulings from the bench made during the Pretrial Conference held on April 27, 2021.  As part of the Order, the Court granted-as-agreed the parties motion in limine that the parties will not make any pejorative references or statements about the defendant being a foreign or Korean company, or “make any suggestion that COVID originated from an Asian country.” Jury selection is set for 9:00 a.m. on April 30, 2021 and the jury trial is set for May 13, 2021 at 9:00 a.m. On May 7, 2021, the Eastern District of Texas jury returned its verdict, finding that the patents were infringed, but not willfully infringed, and that plaintiff was entitled to lump-sum damages of $25,000,000. (Case No. 2:19-cv-00347, April 30, 2021 and May 19, 2021).

Huawei Technologies Co. Ltd. v. Verizon Communications, Inc. et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division issued an Order on Pretrial Motions and Motions In Limine, summarizing the Court’s rulings from the bench made during the Pretrial Conferences held over a number of days.  As part of the Order, the Court granted-as-agreed the parties motion in limine that the parties and witnesses will not make any references ”to China’s connection to the COVID-19 pandemic, or Wuhan’s connection to the COVID-19 pandemic.” (Case No. 2:20-cv-00030, July 2, 2021).

Image Processing Techs., LLC v. Samsung Electronics Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division reset the Jury trial until July 6, 2020. An initial pretrial conference was held on June 1, 2020 and a final pretrial conference was held on June 4, 2020, both by videoconference. On June 29, 2020, the Court denied plaintiff’s Opposed Motion to Continue Trial, seeking an extension based upon concerns related to the COVID-19 pandemic setting forth “specific personal reasons for himself and his co-counsel as a basis to continue the trial in [the] case.”  In denying the motion, the Court indicated “it would be prejudicial to [the defendant], its witnesses, and its representatives to continue the trial . . . [since it] expended great effort and expense to ensure that all its necessary witnesses and representatives are in Marshall, Texas and have complied in advance with CDC quarantine guidelines.” It also noted that moving “a trial date for a civil jury trial is an arduous task, especially when the trial is only a week away, [] many pre-trial disputes have been heard and ruled on, and a jury panel of 125 citizens has been summonsed . . . [and it] would likely result in a delay of many months given the unavailability of open trial dates in the future.” The Court had previously continued the trial until June 1, 2020, granting-as-modified a motion for relief due to complications in securing the trial attendance of witnesses and corporate representative located in Korea amidst the coronavirus pandemic. (Case No. 2:20-cv-00050; March 12, 2020, May 12, 2020, June 1 & June 4, 2020 and June 29, 2020).

Infernal Technology, LLC v. Sony Interactive Entertainment America LLC – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion to Continue Trial, for which jury selection was set to begin on December 4, 2020. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” Jury selection was reset for March 1, 2021. During a telephonic status conference held on March 10, 2021, the court informed the parties that the case was continued from the current March 15, 2021 trial setting after discussing the medical status of lead counsel for plaintiff and the chances of moving forward with a jury trial setting. The Court instructed the parties that once “a positive medical guidance has been declared” by the treating physician of the lead counsel for plaintiff it should be provided to the Court, and the case will be reset for trial. On September 21, 2021, the Court issued an Order entering certain joint stipulations that the parties agreed to for the purposes of the trial, including that “[n]either party will solicit or present any argument, evidence, or reference to the absence of any witness in the court room. . . [or] travel arrangements or accommodations of witnesses or attorneys without prior leave of the Court.” During a Telephonic Status Conference held on September 29, 2021, the Court discussed the upcoming jury selection and trial scheduled for Monday, October 4, 2021, providing the parties with instructions about health and safety protocols relating to the COVID-19 pandemic. On October 7, 2021, the Eastern District of Texas jury returned its verdict, finding that the patents were not infringed and that the defendant proved by clear and convincing evidence that the asserted claims involve only technologies and activities that were well-understood, routine and conventional. (Case No. 2:19-cv-00248; November 20, 2020, March 10, 2021, September 21, 2021, September 29, 2021 and October 7, 2021).

Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT et al. –The U.S. District Court for the Eastern District of Texas’s Marshall Division granted plaintiff’s Motion To Continue Trial Setting, continuing the jury trial from July 12, 2021 to August 16, 2021 at 9:00 a.m., finding that a continuance is appropriate given the Court’s trial schedule and conflicts presented by the current trial date.  As part of its Motion the plaintiff stated that defendants’ witnesses will face difficulties traveling from Lithuania during the COVID-19 pandemic, although defendants responded they believe that they can comply with international travel restrictions while ensuring their witnesses are physically present for the trial.  On August 25, 2021, the Court granted another continuance in response to the parties Agreed Motion To Continue Trial Setting, resetting the jury trial for November 1, 2021 at 9:00 a.m. (Case No. 2:19-cv-00395; June 8, 2021 and August 25, 2021).

Optis Wireless Tech., LLC, et al. v. Apple Inc. –The U.S. District Court for the Eastern District of Texas’s Marshall Division sua sponte ordered expedited briefing with respect to Defendant’s Motion to Continue Trial, requiring plaintiffs to file any response on or before 5:00 p.m. (CDT) on Friday, July 17, 2020. The Motion requests the Court to continue the August 3, 2020 jury trial until October 5, 2020, due to the increasing caseloads and “undue risks” associated with the COVID-19 pandemic, and assess at that time whether conditions have improved enough to hold the trial. The Court facing a “conundrum of first impression”, denied defendant’s Motion to Continue Trial.  It was “persuaded, on balance, that moving forward with the trial as scheduled is the better choice” given the “precautions crafted, the absolute lack of any reliable information as to when the current pandemic may abate, and the global struggle between these sophisticated parties which only worsens while a resolution is delayed.” While acknowledging that the COVID-19 pandemic “presents serious public health concerns”, the Court indicated that is has “diligently undertaken to put in place reasonable precautions in order to facilitate a full and fair trial, while maintaining the health and safety of those involved.” The Court e-mailed “precise instructions” to counsel for the parties in advance of the July 27, 2020 pretrial conference and indicated that it “intends to provide additional guidance to counsel for the parties as part of the pretrial conference [] including limiting the number of persons seated at counsel tables to three persons per table during voir dire and during trial; directing trial counsel and the jury—once the trial begins—to wear face shields which will allow for a full view of the lawyers’ and jurors’ faces and expressions while providing substantial protection from projection of breath droplets; and encouraging all participants to follow the CDC’s community mitigation-guidelines.” The Court further felt that the plaintiff would be prejudiced because the requested two-month continuance would likely result in a delay of many months, “pushing this trial well into 2021 or 2022.”  Finally, with respect to the due process concerns regarding the inability of certain witnesses to testify in-person at trial due to international travel restrictions, the Court found that real time live video testimony may be presented. On August 11, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven invalid and that they were willfully infringed, and that plaintiff was entitled to damages of $506,200,000 as a royalty for past sales. On April 14, 2021, the Court granted defendant’s Motion for New Trial as to damages, but denied it all other respects, including as to liability. On August 13, 2021, the Eastern District of Texas jury returned its verdict, finding that the plaintiff was entitled to damages of $300,000,000 as a lump-sum for past and future sales. On September 8, 2021, the Court entered a Final Judgment in accordance with the jury’s unanimous verdict ordering that plaintiff shall recover from defendant the sum of $300,000,000.00 as a lump-sum for past and future sales, but the Court concluded that enhancement of the compensatory award was not warranted under 35 U.S.C. § 284, notwithstanding the jury’s finding of willfulness, and the Court elected not to enhance the damages awarded. (Case No. 2:19-cv-00066; July 15, 2020, July 21, 2020, August 11, 2020, April 14, 2021, August 13, 2021 and September 8, 2021).

Personalized Media Communications LLC v. Apple Inc. – The U.S. District Court for the Eastern District of Texas’s Marshall Division held a final pretrial conference during which the Court confirmed that the parties had received the COVID-19 protocol email.  Jury selection was set to be on Monday 15, 2021 at 9:00 a.m. (CDT). On March 19, 2021, the Eastern District of Texas jury returned its verdict, finding that the asserted claims of the patent-in-suit were proven to be infringed and the plaintiff was awarded damages of $308,488,108.00 as a running royalty. (Case No. 2:15-cv-01366; March 9, 2021 and March 19, 2021).

Personalized Media Communications LLC v. Google LLC et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted as modified, the defendants’ Motion to Continue Trial, requesting a 90-day extension to the jury trial.  The Court re-set the jury selection and trial from October 1, 2020 until November 2, 2020, with the pretrial conference to be held on October 19 and 21, 2020. The defendant requested the continuance for, among other reasons, the unavailability of witnesses due to another litigation. The defendant also argued that “due to the COVID-19 pandemic, good cause exists to continue the trial from October in light of the totality of the circumstances.” As part of this argument, the defendant argued it would be “unfairly” prejudiced particularly because plaintiff’s witnesses are currently planning to attend in person and at least one of the defendants’ witnesses will likely not be able to attend trial in person. According to the defendants, plaintiff would “not stipulate to witnesses appearing remotely due to COVID-19 concerns . . . and also indicated it intends to affirmatively argue to the jury that any [defendant] witness who appears remotely did so not because of the legitimate safety concerns of COVID-19, but instead because the case must not be important to defendant.” Even if such an argument is precluded, defendants noted that “the jury may nonetheless draw that same conclusion or reach other negative impressions.” On November 6, 2020, the Eastern District of Texas jury returned its verdict, finding that the asserted claims of the patents-in-suit were not proven to be infringed. (Case No. 2:19-cv-00090; September 14, 2020 and November 6, 2020).

Ramot At Tel Aviv Univ. Ltd. v. Cisco Systems, Inc. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion For Continuance, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.”  (Case No. 2:19-cv-00225; November 20, 2020).

Attachment:
Personalized Media Communicats v. Google - DI 435 - November 6, 2020

Salazar v. AT&T Mobility LLC et al. The U.S. District Court for the Eastern District of Texas’s Marshall Division entered the parties Joint Proposed Trial Management Procedures to govern trial. On August 9, 2021, the Eastern District of Texas jury returned its verdict, finding that plaintiff did not prove by a preponderance of the evidence that the patents were infringed and that defendant did not prove by clear and convincing evidence that the asserted claims were invalid.   (Case No. 2:20-cv-00004, August 1, 2021 and August 9, 2021).

SAS Institute Inc. v. World Programming Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied, without prejudice, the parties’ Joint Motion to Continue Trial Setting, requesting a 90-day extension to the jury trial – currently scheduled to begin with jury selection on July 6, 2020 -- due to travel restrictions stemming from the COVID-19 pandemic. The Court acknowledged “the need to protect parties, court staff, witnesses, corporate representatives, and practitioners during this crisis”, but felt the motion is premature “[g]iven the constant evolution of the pandemic” and related travel restrictions. In particular, The Court noted the evolving COVID-19 pandemic and related travel restrictions may very well change several times before the scheduled jury selection, hopefully in ways that may assuage the present concerns raised by the Motion. Nonetheless, the Court also noted that “[t]he parties are free to seek similar relief at a later date, if present impediments do not abate or are otherwise modified/lifted.” The Court granted-in-part the parties Renewal of Their Joint Motion to Continue Trial Setting, in a June 8, 2020 Order. The Court issued an Amended Docket Order setting the pretrial conference to take place on August 24-25, 2020 and jury selection to take place on September 14, 2020. The Final Pretrial Conference was set for August 25, 2020 at 9:00 a.m. (CDT). Jury selection reset for September 10, 2020 at 9:00 a.m. (CDT) In an August 24, 2020 Order As To Copyrightability, the  Court reset the pretrial conference for November 24, 2020 and jury selection and trial for January 4, 2021, until after a copyrightability hearing could be heard to deal with two pending summary judgment motions regarding copyright. (Case No. 2:18-cv-00295; May 22, 2020, June 8, 2020, June 12, 2020, June 16, 2020, August 17, 2020 and August 24, 2020).

Solas OLED Ltd. v. Samsung Display Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants' Unopposed Motion To Continue Trial, removing the jury trial from the October trial docket and indicating that it will be reset at a later date by subsequent order. The defendants had argued that one of its “key expert witnesses, located in West Virginia, is unavailable to travel to Texas to testify live at trial . . . [and he] is also unable to sit for a remote trial deposition by video.” Based on briefing and statements during a telephone status conference, the Court indicated in an Order issued on October 15, 2020, that “having considered the schedules of counsel for the Parties, potential trial witnesses for the Parties, travel schedules, and the current global health situation, the Court is of the opinion that the [case] should be and hereby is specially set as first for trial in the first week of December, with jury selection to begin on December 4, 2020.” On November 20, 2020, the Court granted defendants’ Opposed Motion to Continue Trial, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” On March 8, 2021, the Eastern District of Texas jury returned its verdict, finding that two of the asserted patents were infringed, one of them willfully infringed, with a third patent found to be proven invalid. The jury found that the plaintiff was entitled to lump sum damages of $62,738,543.00 on its claim of patent infringement. (Case No. 2:19-cv-00152; September 29, 2020, October 15, 2020, November 20, 2020 and March 8, 2021).

Ultravision Technologies, LLC v. GoVision, LLC - The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendant’s Motion For Trial Depositions, with the understanding that the two witnesses will remain unable to attend the trial in person on June 3, 2021.  On June 11, 2021, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven to be infringed and were proven to be invalid. (Case No. 2:18-cv-00100; May 13, 2021 and June 11,  2021).

Magistrate Judge Roy S. Payne

GREE, INC v. Supercell Oy – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendant’s motion seeking a continuance of the August 3, 2020 jury trial date, stating that it was “persuaded by the unopposed nature of the motion and the conditions the parties have agreed upon.” The defendant had raised concerns that the trial “presents the risk of becoming a super spreader event”, given the accelerating COVID-19 pandemic and the number of attendees from different locations, due process issues related to restrictions on its ability to have in-person witnesses from abroad and the lack of prejudice to either party in moving the trial to September, particularly given the denial to institute the related IPR proceedings and other agreements made by defendant.  The pretrial conference was continued to August 17, 2020, with trial continued to September 14, 2020. The Court denied defendant’s Renewed Motion For A Trial Continuance In View Of Concerns Presented By The Covid-19 Virus, which was filed “roughly 36 hours before jury selection [was] set to occur in [the] case.” The Court was not persuaded by defendant’s complaint that it “does not possess the ability to make its three Finland-resident fact witnesses attend trial,” in part because there was no evidence defendant tried. Finding the showing made insufficient, the Court stated that defendant’s “only request is an indefinite continuance of the trial.”  On September 18, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven invalid and that they were willfully infringed, and that plaintiff was entitled to lump-sum damages of $8,500,000 for past and future sales. On May 7, 2021, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven invalid and that they were willfully infringed, and that plaintiff was entitled to lump-sum damages of $92,176,058 for past and future sales. (Case No. 2:19-cv-00311, presiding before Chief District Judge J. Rodney Gilstrap; February 19, 2021 and May 7, 2021).

GREE, INC v. Supercell Oy – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted plaintiff’s motion to compel to enforce an agreement to present two witnesses for trial depositions by February 22, 2021, and denied defendant's motion to remove the agreement from the Pretrial Order to instead present the witnesses between February 24th and February 26th.  At the time the Pretrial Order was filed, the pretrial conference was scheduled more than a week before jury selection, but in response to an emergency weather situation, on February 15, 2021, the Court issued a Notice resetting the pretrial conference (with the concurrence of counsel for both sides) to February 23, 2021, less than a week before the trial date.  Rejecting defendant’s argument that the pretrial conference should happen before the depositions, the Court found there would be “minimal prejudice” to requiring the depositions to happen before the pretrial conference.  The Court noted that both parties “have been aware of the ongoing pandemic and that the Court’s schedule has responded flexibly to evolving circumstances”, and the Court found no compelling reason to disregard the negotiated agreement. Jury selection is set for March 1, 2021 at 9:00 a.m. (CST).  (Case No. 2:19-cv-00311, presiding before Chief District Judge J. Rodney Gilstrap; February 19, 2021).

Team Worldwide Corporation v. Academy, Ltd. d/b/a Academy Sports & Outdoors – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted in part the parties Joint Motion for Continuance seeking a 60-day continuance of the trial due to the COVID-19 pandemic. Among the reasons for the request, the parties expressed serious concern about the ongoing risk of COVID-19 infection and very few of the attorneys, staff, and witnesses are vaccinated, putting the majority of the trial teams at risk of infection from the travel necessary for both the pretrial conference and the trial. In addition, plaintiff noted that “the quarantine and testing requirements of all of the various states involved for [its] trial team – California, District of Columbia, Maryland, Texas, and Virginia – significantly complicate the ability of the trial team to travel at all for pretrial and trial at the current time . . . [and its] principal fact witness must travel from Taiwan and may face additional testing and quarantine requirements beyond that of the states involved.” The Court indicated it is prepared to continue the trial to the May jury term in order to facilitate the mediation and other issues raised in the motion, but that it was not prepared to grant a 60-day continuance. The pretrial conference currently scheduled for March 18, 2021 was continued to be reset during a telephone conference to be held on March 18, 2021. The Court issued an Order on March 16, 2021, setting jury selection for 9:00 a.m. on Friday, April 30, 2021. The Court issued an Order on March 16, 2021, setting jury selection for 9:00 a.m. on Friday, April 30, 2021. On May 3, 2021, the Court issued an Order on Motions In Limine, including no disparaging any parties, counsel or witnesses for attending trial remotely due to the COVID-19 pandemic, or a witness’s physical absence from trial.  (Case No. 2:19-cv-00092, presiding before Chief District Judge J. Rodney Gilstrap; March 13, 2021, March 16, 2021 and May 3, 2021).

Eastern District of Texas (Shearman Division)

District Judge Amos L. Mazzant, III

Innovation Sciences, LLC v. Amazon.Com, Inc. – The U.S. District Court for the Eastern District of Texas’s Sherman Division provided instructions to attorneys, during the final pretrial conference, regarding the COVID-19 protocol that the Court will follow during the jury trial scheduled to begin on August 24, 2020. Among the instructions provided were that temperatures will be taken at the door of the jurors each day, Counsel will need to wear masks unless questioning the witnesses and should stay at podium during questioning, face shields will be provided to the jurors that are selected, and that no more than 5 will be allowed at Counsel table with social distancing practices encouraged. The Court further advised the parties that “Counsel should wear masks and try to limit bench conferences as much as possible.” The Court also indicated that staff will wipe down the witness stand but attorneys are encouraged to wipe down the podium after each use before the next counsel takes the podium. At least one elderly witness that can’t travel due to the COVID-19 pandemic would be appearing via a video conference system, with another third party witness also possibly appearing by video. On September 2, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven to be infringed and were proven to be invalid and well-understood, routine and conventional at the time of the invention. (Case No. 4:18-cv-00474; August 13, 2020 and September 2, 2020).

Wapp Tech Limited Partnership et al v. Micro Focus International PLC - The U.S. District Court for the Eastern District of Texas’s Sherman Division granted in part plaintiffs’ Motion To Strike and Exclude Undisclosed Witnesses, ruling that defendants were precluded from calling two witnesses at trial. Defendants argued that the disclosure of the two witnesses was timely because they were previously disclosed as persons of interest during depositions, and in addition they argued defendants should be allowed to replace witnesses “rendered unavailable by the pandemic.” The Court rejected the disclosure argument and found defendants do not need the two witnesses to replace others, because those other witnesses have presumably been deposed and may be called by deposition at trial, as is standard practice. On March 5, 2021, the Eastern District of Texas jury returned its verdict, finding that the patents were willfully infringed, and that plaintiff was entitled to damages of $172,554,269.00 on its claim of patent infringement. (Case No. 4:18-cv-00469; February 5, 2021 and March 5, 2021).

Eastern District of Texas (Texarkana Division)

District Judge Robert W. Schroeder, III

Maxell, Ltd. v. Apple Inc. – The U.S. District Court for the Eastern District of Texas’s Texarkana Division sua sponte reset the pretrial conference, jury selection and trial due to the effects of the COVID-19 pandemic. The pretrial conference, which was previously scheduled for October 6, 2020, will now be held on November 12, 2020 at 10 a.m. and jury selection, which was previously scheduled to be on October 26, 2020, will now begin on December 7, 2020 at 9:00 a.m., with the trial to begin immediately following jury selection. On December 1, 2020, the Court issued an Order resetting jury selection and trial for March 22, 2021 at 9 a.m. (CDT) On March 15, 2021, the Court issued an Order denying defendant’s Motion to Stay Pending Proceedings at the Patent Office or, in the Alternative, to Continue Trial Due to the COVID-19 Pandemic, deciding that the current trial date should be maintained. As part of its continuance analysis the Court noted that in managing its docket during the COVID-19 pandemic, the Court has looked at several factors, including but not limited to: (1) the risks posed by the pandemic and available safety protocols to mitigate and reduce such risks; (2) the prejudice to parties that would result from a continuance; and (3) the availability of remedial measures to address any due process concerns. In this case, the Court found that all factors weigh against granting a continuance. The Court acknowledged that the pandemic has required flexibility from courts and litigating parties across the country in adjusting to the challenging new conditions, but noted the  Court “has consistently accommodated parties’ precautionary requests and will continue to do so within reason.” The Court also noted that “witnesses for both sides may need to participate remotely, obviating [defendant’s] concerns that it will be disproportionately impacted.” (Case No. 5:19-cv-00036; August 10,  2020, December 1, 2020 and March 15, 2021).

Eastern District of Texas (Tyler Division)

District Judge Robert W. Schroeder, III

Network-1 Security Solutions, Inc. v. Hewlett-Packard Company  – The U.S. District Court for the Eastern District of Texas’s Tyler Division granted plaintiff’s request for a two-week continuance of the pretrial conference, but denied its request for a corresponding continuance of the trial, which is currently scheduled to begin on August 2, 2021.  The Court found that the plaintiff had not shown good cause to continue the trial since the only explanation for being unable to maintain the current trial setting is that its lead trial counsel cannot attend the currently scheduled pretrial conference due to a conflict, but lead counsel’s other trial will have finished by August 2 and so plaintiff had not shown any actual conflict with the current trial setting. The Court further stated that even if the parties had agreed to a short continuance of several weeks of the trial setting, the Court could not accommodate that request given the Court’s current calendar. The Court had tried six jury trials to verdict and held many hearings in just the past three months, and it indicated that its upcoming schedule is similarly congested. As such, any continuance would likely result in a three- to four-month delay of the trial.  (Case No. 6:13-cv-00072; July 12, 2021).

VirnetX Inc. et al v. Apple Inc. – The U.S. District Court for the Eastern District of Texas’s Tyler Division granted defendant’s Motion to Expedite Briefing on its Motion to Conduct the Pretrial Conference Remotely for All Parties, requiring plaintiff to file any opposition on July 21, 2020. The defendant’s underlying Motion requests that the Court conduct the pretrial conference by telephone or video for all parties, because “[t]he COVID-19 pandemic is accelerating in Texas with no signs of slowing . . . [and c]onducting an in-person pretrial conference on August 3, 2020  needlessly places the health and welfare of all participants involved at risk when no party would suffer prejudice from a conference by telephone or video.” The Court granted defendant’s motion for a remote pretrial conference.  The Court stated that “[a]lthough in-person proceedings are always preferable and the Court has confidence in its ability to safely manage an in-person pretrial conference in this matter, [defendant’s] request is reasonable.” The pretrial conference will remain as scheduled on August 3, 2020, and to the extent feasible the Court “intends to make the pretrial conference publicly available and will provide further information regarding dial-in or log-in instructions in a notice filed on the docket.” On August 10, 2020, the Court granted-as-modified defendant’s Motion to Continue Trial finding good cause for the continuance in light of the COVID-19 pandemic. The jury trial was reset for October 26, 2020 at 9 a.m. and the final pretrial conference was set for 10 a.m. on October 20, 2020. On October 13, 2020, the Court granted-as-modified-in-part and denied in part defendant’s Unopposed Motion for Relief from Standing Orders Relating to Court Operations During the National Pandemic, which requested exceptions to allow its in-house counsel to attend the jury trial to be held during the COVID-19 pandemic. The Court decided the in-house counsel “may attend the trial in person if he: (1) receives at least three negative COVID-19 tests between his arrival in the United Kingdom and jury selection for this matter on  October 26, as described hereinafter; (2) he tests negative for COVID-19 immediately prior to his departure from the UK; (3) he tests twice following his return to the United States, and at least one of the two COVID-19 tests he receives in the United States must be a molecular (e.g., RT-PCR) test; and (4) the molecular test is conducted a minimum of five days after his arrival in the United States.”  The Court further ruled, however, that he may not attend the pretrial conference, either telephonically or in person, stating that it “will not make an exception to Standing Order 2020-5 for someone who traveled from the UK only three days before the conference.” On October 30, 2020, the Eastern District of Texas jury returned its verdict, determining that a royalty rate of $0.84 per device would fairly and reasonably compensate plaintiff for defendant’s infringement, amounting to a total damages amount of $502,848,847.20. (Case No. 6:12-cv-00855; July 15,  2020, July 22, 2020, August 10, 2020, October 13, 2020 and October 30, 2020).

Northern District of Texas (Dallas)

Chief District Judge Barbara M. G. Lynn

Albritton, IV v. Acclarent, Inc. – The U.S. District Court for the Northern District of Texas granted the defendant's Unopposed Motion for Continuance of Trial, requesting that the Court continue the trial by approximately four months because the COVID-19 pandemic has made defendant “unable to procure testimony from several key trial witnesses—in spite of its diligence—if the trial proceeds in September.” In particular, the defendant indicated that many of its “key trial witnesses live out of state and are at greater risk for COVID-19 due to their respective age groups and/or pre-existing health conditions.” The Court reset the trial date to March 1, 2021 at 8:30 a.m., from September 21, 2020, with the pretrial conference to be held on February 26, 2021 at 9:00 a.m. (Case No. 3:16-cv-03340; July 7, 2020).  

Southern District of Texas (Houston Division)

District Judge Andrew S Hanen

Legacy Separators LLC v. Halliburton Energy Services Inc et al. – The U.S. District Court for the Southern District of Texas’s Houston Tyler Division sua sponte issued an order notifying the parties that there will be “no jury trials in the month of September”, a fact that the Court felt would “likely surprise no one monitoring the COVID-19 statistics.”  In a prior Order, the Court had cancelled the jury trial which had been scheduled to start on August 24, 2020 because the Houston Division had suspended all jury trial until September 8, 2020 “due to the apparent resurgence of COVID-19 cases.”   However, now “the Court believes that the best course of action is for the parties to give proposed dates for a weeklong jury trial in either October, November, or December.”   On September 23, 2020, the Court issued an Order setting the jury trial for November 30, 2020 and the pretrial conference from November 16, 2020. The parties were informed, however, that the Houston Division is only picking one jury per day so the trial may not begin exactly on the 30th.  The Court indicated that it intends to try the case in the courtroom but that “health concerns will be a consideration and [it] . . . may limit attendance at trial.”  Counsel were advised to “keep this in mind as they formulate their trial teams and plan their witness schedules . . . [and to] exercise caution and common sense as to what individuals are needed each day and [that] excess personnel should not be in attendance.” On November 10, 2020, the Court issued a Timing Order allocating 14.5 hours to each side for all testimony and testimony related matters in the jury trial beginning on November 30, 2020. The Court also indicated that “due COVID-19 social distancing, [it] will limit the number of attorneys, spectators, and extra personnel in the courtroom.” On November 17, 2020, the Court issued an Order granting defendant’s Motion to Allow Remote, Video Link Trial of At-Risk Witnesses. During telephonic proceedings on November 19, 2020, the Court notified the parties that trials are cancelled until January 19, 2021, and instructed the parties to meet and confer to find a date between January 19 and February 8, 2021 to set trial.  (Case No. 4:14-cv-02081; July 9,  2020, August 12, 2020, September 23, 2020, November 10, 2020, November 17, 2020 and November 19, 2021)

District Judge Lynn N. Hughes

FlexSteel Pipeline Technologies, Inc. v. Offshore Piplines and Risers (OPR) Inc. et al. – The U.S. District Court for the Southern District of Texas’s Houston Division sua sponte issued an Order of Appearances indicating that “to accommodate health care, the court prefers only one lawyer appear for each party.” The pretrial conference was set for September 21, 2020 at 3:30 p.m. (Case No. 4:18-cv-02351; September 17, 2020).

Western District of Texas (San Antonio)

District Judge David A. Ezra

M-I LLC v. FPUSA, LLC – The U.S. District Court for the Western District of Texas in San Antonio issued an Order that due to need for social distancing during the COVID-19 pandemic and the delays that will be associated with jury selection, “the cost of subsistence of [the] jury panel and empaneled jury members, including cost of coffee, lunch, and other necessaries incurred by [the] jury during Court recesses shall be paid by the United States Government.” The jury trial is set to begin on October 4, 2021 at 9:00 a.m.  On October 19, 2021, the Western District of Texas jury returned its verdict, finding that the asserted patents were shown to be directly and indirectly infringed, were not shown to be invalid or unenforceable for inequitable conduct or unclean hands, and that the plaintiff was entitled to lost profits damages of $969,433. (Case No. 5-15-cv-00406; October 4, 2021 and October 19, 2021).   

Western District of Texas (Waco)

District Judge Alan D. Albright

CloudofChange, LLC v. NCR Corporation  The U.S. District Court for the Western District of Texas in Waco issued a Notice of Trial Procedures in anticipation of trial on May 17, 2021, including COVID-19 safety protocols to provide a safe environment for all parties and trial participants.  On April 21, 2021, the Western District of Texas jury returned its verdict, finding that the patents were willfully infringed, not proven invalid and that plaintiff was entitled to lump sum damages of $13,200,000.00 on its claim of patent infringement. On July 13, 2021, the Court entered Judgment in accordance with the jury verdict. (Case No. 6-19-cv-00513; May 13, 2021, May 20, 2021 and July 13, 2021).

Digital Retail Apps Inc. v. H-E-B LP – The U.S. District Court for the Western District of Texas in Waco entered the parties Joint Stipulation And Order Postponing Trial, agreeing to postpone the trial date from February 19, 2021 to an available date in April in order to allow the COVID-19 pandemic situation to ameliorate. The parties had noted that the worsening COVID-19 pandemic raised significant concerns for both parties’ attorneys, witnesses, and experts regarding the risks posed to anyone attending the in-person trial. The Court adopted the parties’ proposed schedule, which resets the jury trial to April 19, 2021.  (Case No. 6:19-cv-00167; January 13, 2021).

Fintiv, Inc. v. Apple Inc. – The U.S. District Court for the Western District of Texas in Waco issued an Order denying defendant’s Motion To Stay of the jury trial, but “to afford the Federal Circuit more time to resolve [defendant]’s mandamus petition, the Court [continued the] trial for one week, with a new trial date of October 12, 2021.” As part of its analysis, the Court found that the defendant’s reliance on the “surge of COIVD cases does not justify a continuance or stay either.” The Court found unavailing the argument based on “outdated facts”, in particular the Court’s statements back in March 2020 and the Standing Order dated on April 9, 2020. The Court noted that with a much better understanding of COVID, it “has safely conducted six patent jury trials and several other non-patent civil trials and criminal trials during the COVID pandemic between October 2020 and June 2021, with no reported COVID exposure of those involved in any of the trials.” And further noted that “it is even safer to conduct jury trials now compared to early 2021 given that COVID vaccines, which have been proved to be highly effective, are readily available in the United States.” The Court also indicated that “even if the trial is continued to February or March 2022, there is no guarantee that COVID pandemic will subside by then.” On October 4, 2021, the Court issued an Order transferring the case to the Austin division and resetting the jury trial to start on January 10, 2022 at 9:00AM. (Case No. 1-19-cv-01238; September 16, 2021 and October 4, 2021).

Jiaxing Super Lighting Electric Appliance Co., Ltd. et al v. CH Lighting Technology Co., Ltd. et al. - The U.S. District Court for the Western District of Texas in Waco issued an Order Concerning Final Pretrial Conference Motions entering motions that the Court had provided oral rulings on during the Final Pretrial Conference. Among the granted motions was an agreed upon Motion in Limine to exclude information relating to plaintiffs’ political affiliations, plaintiffs’ nationalities, and COVID-19. The jury trial is set to begin on November 1, 2021 at 9:30 a.m. (Case No. 6:20-cv-00018; October 15, 2021).

MV3 Partners LLC v. Roku, Inc. – The U.S. District Court for the Western District of Texas in Waco sua sponte set a telephone conference for May 13, 2020 during which the Court indicated that the trial date has been reset from June 1, 2020 to June 29, 2020, in light of the Supplemental Order Regarding Court Operations Under The Exigent Circumstances Created By The COVID-19 pandemic issued on May 8, 2020 by Chief Judge Orlando L. Garcia, and that the Final Pretrial Conference is postponed from May 20, 2020 until a later date in June at which time it will be held in person. The Court further indicated that the jurors will probably have voir dire the Thursday or Friday before the trial. According to a May 1, 2020 Minute Entry, there will be 8 jurors selected from a jury pool of 48 and the seating in the gallery will be 4 per bench. In a June 4, 2020 Pretrial Conference, trial procedures were reviewed including that the parties will provide box lunches for the jury each day, the witnesses will be behind plexiglass, the number of people sitting at counsel table will be limited to 3, there will be no physical exhibits except for ELMO available to the jury, and only one counsel from each side may approach the bench during any bench conference. On April 8, 2020, the Court had previously denied defendant’s motion to continue the June 1 trial, stating that such a continuance would be premature as “the trial is still several weeks away.” In addition, the court issued a standing order on April 9, 2020 for all patent infringement cases in the post-Markman stage of litigation, acknowledging the “potential difficulties related to the COVID-19 virus that parties in patent cases may experience” and, thus, “is willing to consider all reasonable adjustments to the current orders to allow the parties to complete discovery…and file appropriate motions.” The court required only that the parties meet-and-confer first, further stating that it would give “great deference” to joint scheduling proposals. In a June 15, 2020 Minute Order the Court explained that it will not be able to hold the trial as it has been set due to the COVID-19 pandemic and suggested to reset the trial for August 3, 2020, however the Court indicated that it “cannot guarantee that the pandemic will allow the trial to go forward then.”  The Court cancelled the Final Pretrial Conference, currently scheduled for June 18, 2020, and indicated that the conference will be postponed until about 10 days before the new trial date. During a July 7, 2020 Status Conference, the Court sua sponte let the parties know that the trial will need to continued again due to the COVID-19 pandemic. The Court suggested that Jury Selection be held on September 3rd or 4th and that the trial be reset to start on September 8th, despite some expressed concern from counsel that “planning the trial for September may be too soon.” The Final Pretrial Conference will be held on August 27, 2020. During a discovery hearing held on August 10, 2020, the defendant “voiced that due to the current pandemic and the numbers associated with it in Waco, that their clients feel it would be possibly unsafe for their health and they would like the trial to be moved further out - possibly October.”  Despite being “surprised”, having thought that “everyone was on board with moving forward in September,” the Court continued the jury selection and trial due to the defendant’s issues. (Case No. 6:18-cv-00308; May 13, 2020, June 4, 2020, June 15, 2020, July 7, 2020 and August 10, 2020).

Attachment:
MV3 Partners LLC v. Roku, Inc. Order - May 11, 2020
MV3 Partners LLC v. Roku, Inc. Order - June 4, 2020
MV3 Partners LLC v. Roku, Inc. DI 308
MV3 Partners LLC v. Roku, Inc. DI 309
MV3 Partners LLC v. Roku, Inc. DI 385

SAS Institute Inc. v. World Programming Limited et. al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied, without prejudice, the parties’ Joint Motion to Continue Trial Setting, requesting a 90-day extension to the jury trial – currently scheduled to begin with jury selection on July 6, 2020 -- due to travel restrictions stemming from the COVID-19 pandemic. The Court acknowledged “the need to protect parties, court staff, witnesses, corporate representatives, and practitioners during this crisis”, but felt the motion is premature “[g]iven the constant evolution of the pandemic” and related travel restrictions. In particular, The Court noted the evolving COVID-19 pandemic and related travel restrictions may very well change several times before the scheduled jury selection, hopefully in ways that may assuage the present concerns raised by the Motion. Nonetheless, the Court also noted that “[t]he parties are free to seek similar relief at a later date, if present impediments do not abate or are otherwise modified/lifted.” (Case No. 2:18-cv-00295; May 22, 2020).

Profectus Technology LLC v. Google LLC f/k/a Google Inc. – The U.S. District Court for the Western District of Texas in Waco issued a Notice Of Trial Procedures, notifying the parties of trial procedures for the jury trial set for Monday October 4, 2021 at 9:00 a.m. The procedures included COVID-19 safety protocols such as pre-entry health assessments, face covering, social distancing, and partial sequestration of the jury. The Order also provides for audio access for the public via an audio feed, and a live video feed of the trial proceedings provided to party-affiliated individuals who choose to observe the trials remotely and any witnesses who choose to testify remotely. The Court also noted that “remote trial participants and observers should silence electronic devices other than the devices necessary to their remote participation, close unnecessary computer programs or applications (such as email or calendar notifications), and take steps to remove or minimize anything in their remote workspace that might distract from the integrity of the proceedings.” In addition, all remote participants are required “to do their best to maintain professionalism in order to conduct a fair and efficient trial . . . [and anyone] appearing virtually shall dress in the same manner as they would if they physically appeared in the courtroom.” The Court also issued a Jury Sequestration Order that the jury be sequestered, in light of the continuing response to the COVID-19 pandemic, from the time they report to the jury room each day until released by the Court at the end of each day.  On October 6, 2021, the Western District of Texas jury returned its verdict, finding that the asserted patent was not directly or indirectly infringed and was shown to be invalid by clear and convincing evidence. (Case No. 1-20-cv-00101; September 23, 2021 and October 6, 2021).    

VLSI Technology LLC v. Intel Corporation – The U.S. District Court for the Western District of Texas in Waco issued an Amended Notice of Trial Procedures in anticipation of trial on April 12, 2021, including COVID-19 safety protocols to provide a safe environment for all parties and trial participants.  On April 21, 2021, the Western District of Texas jury returned its verdict, finding that the patents were not proven to be infringed. (Case No. 1-19-cv-00255; April 7, 2021 and April 21, 2021).

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