Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`VLSI TECHNOLOGY LLC,
`Plaintiff,
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`v.
`INTEL CORPORATION,
`Defendant.
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`W:21-CV-00057-ADA
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`NOTICE OF TRIAL PROCEDURES
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`In anticipation of trial on February 16, 2021, the Court notifies the parties of the following
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`trial procedures, which the Court employs to maximize safety and social distancing during trial:
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`• Trial will commence at 9:00 a.m. in the United States District Court, 800 Franklin, Waco,
`Texas 76701. Public parking is available.
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`• The United States Courthouse in Waco is large enough to permit the jury venire panel to
`remain at least six feet apart at all times.
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`•
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`In its jury summons, the Court informed prospective jurors that (1) jury selection will be
`conducted in the district courtroom, which is large enough to accommodate this jury panel
`with recommended social distancing; (2) they should bring a face covering; (3) if selected,
`jurors will be distanced more than six feet apart at all times; (4) all rooms will be cleaned
`and disinfected before their arrival, and hand sanitizer will be available; (5) bathroom
`breaks will be lengthened to ensure physical distancing; and (6) no one should report for
`duty if they feel ill, have any flu-like symptoms, are experiencing shortness of breath, have
`a fever, are coughing or sneezing, have been asked to self-quarantine by any hospital or
`health agency, or have had close contact with anyone who has been diagnosed with
`COVID-19. Jurors have also completed and returned a form addressing their ability to
`participate, which included questions regarding COVID-19. The Court has excused jurors
`who sought to be excused based on COVID-19-related concerns.
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`• Before entering the building, panel members will be instructed to wear a face covering.
`The Court expects to take panel members' temperatures, and anyone with a fever will be
`excused from service. The Court will provide gloves for those who would like them, along
`with hand sanitizer.
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`• Before voir dire begins, the Court will give each panel member a clear face shield and will
`instruct the jurors to wear the shields and N-95 masks throughout voir dire. When
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 2 of 13
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`answering questions, jurors may remove their masks, but not their face shields, if the
`attorneys would like to see the jurors' faces.
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`• The Court will provide the parties an opportunity to do a general and individual voir dire
`at the Court’s discretion. The Court will provide the parties with a diagram of the room
`that identifies the jurors and their seat assignments.
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`If necessary, the Court, counsel, and the court reporter may step out of the room to conduct
`any bench conferences and resolve any motions to strike.
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`• After seven jurors are selected, the Court will dismiss the remaining panel members from
`service in this case.
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`•
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`• To eliminate the need to leave the building to eat lunch, the Court will enter a jury-
`sequestration order and will provide the jurors' lunch. The jurors will be able to maintain
`social distancing during 1unch.
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`• During trial, the jurors will sit in the jury box at least six feet from one another. Jurors will
`have the option of wearing face shields or N-95 face masks. The parties will sit facing the
`gallery and will wear masks or shields while not speaking. Witnesses will testify from the
`jury box and will not wear masks, but the witness will be separated from others in the
`courtroom by a plexiglass barrier. If necessary, bench conferences may be moved to
`chambers.
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`• Throughout the trial, the Court will keep the courtroom doors open to maximize ventilation.
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`• The Court will provide a large air purifier to promote healthy air flow within the courtroom.
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`• Although seating will remain available to the public in the courtroom, an audio feed will
`be available in an overflow room. Court security officers will notify any observers of this
`option. Additionally, if a member of the public would like to listen to the trial but cannot
`attend in person, the Court can provide remote access.
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` •
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` The parties have further agreed to abide by the COVID-19 Protocol below:
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 3 of 13
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`COVID -19 SAFETY PROTOCOL
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`In order to provide a safe environment for all parties and other trial participants,
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`the Court has approved the following COVID-19 safety protocol proposed by the parties.
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`1.
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`Safety Procedures Applicable to Party Participants (Parties, Counsel,
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`Support Staff, and Party-Affiliated Witnesses) Who Enter the Courthouse
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`All party-affiliated trial participants (both from in-state and out-of-state, including
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`attorneys, staff, witnesses, and party representatives) shall be expected to adhere to CDC
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`guidelines. For party-affiliated trial participants:
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`(A) COVID-19 Testing
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`a. Pre-Trial PCR Testing
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`Unless cleared by a licensed physician or as excused by the Court, all party-
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`affiliated trial participants (both from in-state and out-of-state, including attorneys, staff,
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`party witnesses, and party representatives) shall be PCR tested for COVID-19 within five
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`(5) days prior to their first appearance at the Courthouse (including, without limitation,
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`appearance at voir dire or other proceedings) and with confirmed negative results prior to
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`entering the Courthouse.
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`b. Daily Testing
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`In addition to the PCR testing discussed above, there will be mandatory COVID-
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`19 testing each trial day by rapid antigen or PCR testing for all party-affiliated trial
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`participants who enter the Courthouse, except those cleared by a licensed physician in
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`(1)(A)(a) or as excused by the Court. Each party-affiliated trial participant must receive a
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`confirmed negative result from such test prior to entering the Courthouse. Testing for
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`party-affiliated trial participants may be conducted either that morning prior to trial or the
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`day prior to entering the Courthouse. The parties may arrange for such testing to take place
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 4 of 13
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`at a designated area around the Courthouse or may arrange for their own testing (e.g., at
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`their hotel space).
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`c. Notification
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`In the event that any party-affiliated trial participant (from in state or out of state,
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`including attorneys, staff, witnesses, and party representatives) receives a positive COVID-19
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`test result after traveling to Texas or after meeting in person with any participant in the trial, the
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`party with whom that individual is affiliated will notify the Court and the other party
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`immediately that an individual affiliated with that party has received a positive test. The party
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`may but need not disclose the identity of the affected individual but will in good faith cooperate
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`with the other party to provide information sufficient to identify whether and to what extent
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`others have been in contact with the affected individual, including, at least, whether the affected
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`individual previously was in the Courthouse or was in a shared hotel or preparation space with
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`any other of the party’s trial participants.
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`(B) Use of PPE by Party Participants
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`All party-affiliated trial participants are encouraged to use an N95 mask or a
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`generally equivalent mask to be worn at all times in all shared spaces except by (1) the
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`questioning and/or presenting attorney during his/her questioning, opening statements, and
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`closing arguments, while maintaining an at least 10-foot distance from all other persons;
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`(2) a witness while testifying in the witness box surrounded by plexi-glass or other similar
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`protective barrier. Such persons are encouraged to wear face shields while they are not
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`wearing masks, and that the parties provide a suitable microphone and amplification
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`system for those individuals.
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`A mask is not required while a trial participant is eating or drinking, provided that
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`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`he or she does so in a responsible manner and keeps at least a 6-foot distance from all other
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`persons.
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`(C) Social Distancing by Party Participants
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`All party-affiliated trial participants shall endeavor to adhere to social distancing
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`requirements, including keeping an at least 6-feet of distance from other trial participants
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`and limiting Courthouse elevator occupancy to a maximum of two (2) riders at a time.
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`2.
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`Safety Procedures for the Jury and Other Non-Party Trial Participants
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`(A) Rapid COVID-19 Testing Available Free of Charge to Jurors and
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`Court Personnel
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`a. Testing Procedure
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`COVID-19 rapid antigen testing will be made available for jurors, the Court and its
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`staff, and any non-party witnesses each morning of trial prior to the start of the trial day as
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`practicable.1 COVID-19 testing will take place at a location within walking distance of the
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`Courthouse, and would be administered by one or more registered nurse(s) unaffiliated with
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`either party.
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`Testing is expected to take approximately five (5) minutes per tested individual,
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`with results available approximately 15 minutes after testing.
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`Individuals are not allowed to enter the Courthouse until a negative test result has
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`been received by any individual who has opted to be tested. Any individual who receives a
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`positive result may opt to be re-tested to help rule out a false positive.
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`1 This testing would also be available each morning to party affiliated trial participants. Expenses associated with rapid
`testing and other safety procedures for the jury and non-party trial participants shall be shared equally by both parties.
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`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 6 of 13
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`b. Notification
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`In the event that any juror or non-party witness receives a positive COVID-19 test, this
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`fact (without disclosing the identity of the individual) will be communicated by the registered
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`nurse(s) to a designated contact or contacts for each party. The parties will jointly notify the
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`Court immediately thereafter and the parties and Court will convene a conference to discuss
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`appropriate next steps. Intel proposes that in the event that the Court or a member of its staff
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`receives a positive COVID-19 test, this fact (without disclosing the identity of the individual)
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`will be communicated to a designated contact for the Court and the parties and Court will
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`convene a conference to discuss appropriate next steps.
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`(B) Distribution and Use of Personal Protective Equipment (PPE)
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`A variety of PPE be made available free of charge to all jurors and Court personnel,
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`including:
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`• N95 or generally equivalent masks;
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`• ASTM-rated surgical masks;
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`• Face shields;
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`• Disposable gloves; and
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`• Personal hand sanitizer bottles, of at least 60% alcohol by volume.
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`All jurors and non-party trial participants are required to use an N95 or generally
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`equivalent mask at all times in all shared spaces except (a) as permitted by the Court, and
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`(b) a mask is not required while an individual is eating or drinking, or, while deliberating,
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`provided that he or she does so in a responsible manner and keeps at least a 6-foot distance
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`from all other persons.
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 7 of 13
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`(C) Pre-Entry Health Assessments
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`a. Temperature Checks
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`Consistent with existing protocols, the Courthouse personnel will perform a
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`temperature check on all individuals entering the Courthouse through no-contact thermal
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`imaging. Any person exhibiting a temperature greater than 100.4o will not allowed in the
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`building.
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`b. COVID-19 Safety Questionnaire
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`Self-assessment health signage is already posted conspicuously around the
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`Courthouse. Such signs direct any person who fails the self-assessment not to enter the
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`building.
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`In addition to the self-assessment health signage around the Courthouse building,
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`jurors and non-party trial participants are required to (i) complete a written COVID- 19
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`self-assessment form on the first day they enter the Courthouse, which form would be
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`submitted in confidence to the Court’s personnel, and also (ii) promptly inform the Court
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`of any material changes in the self-assessment before they return to the Courthouse on any
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`subsequent day in connection with the trial. The assessment would include the following
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`questions:
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`•
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`In the last three weeks, have you been diagnosed with COVID-19?
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`• Are you currently experiencing new or worsening signs of any of the
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`following symptoms not otherwise attributable to a condition other than
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`COVID-19 (such as pregnancy, dehydration, rigorous exercise, etc.):
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`difficulty breathing or shortness of breath; loss of the sense of taste or smell;
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`gastrointestinal discomfort including vomiting or diarrhea; fever; cough;
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 8 of 13
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`fatigue; headache; or muscle or body aches; or runny nose?
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`•
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`In the last two weeks, have you been in close contact with someone who
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`was diagnosed with COVID-19 or whom you believe likely has COVID-
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`19? You have been in close contact if you have (a) been within 6 feet of
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`someone who has COVID-19 for a combined total of 15 minutes or more
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`over a 24-hour period or (b) provided care at home to someone who is sick
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`with COVID-19 or (c) had direct physical contact (e.g., hugged or kissed)
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`with someone who has COVID-19 or (d) shared eating or drinking utensils
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`with someone who has COVID-19 or (e) been sneezed on or coughed on
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`by someone who has COVID-19.
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`(D) Social Distancing
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`All jurors and non-party trial participants be instructed to adhere to social
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`distancing requirements, including keeping an at least 6-feet of distance from other trial
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`participants and limiting Courthouse elevator occupancy to a maximum of 2 riders at a
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`time.
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`3.
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`Additional Proposed Safety Procedures
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`(A) Procedures For Jury Assembly Room and Jury Deliberation Room
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`Additional precautions are to be taken in rooms used by the jury during assembly,
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`breaks, and deliberations, on days when such rooms are occupied:
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`• Use of portable HEPA air filtration systems to be supplied by the parties
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`with a collective filtration rate in the range of 300-800 ft3/min;
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`• Availability of hand sanitizer containing at least 60% alcohol by volume; and
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`• Daily surface cleanings with appropriate disinfectants with activity against
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`Koss 2006
`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 9 of 13
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`COVID-19.2
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`(B) Procedures In the Courtroom
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`Additional precautions are to be taken in the Courtroom each day of trial:
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`• Use of two portable HEPA air filtration systems to be supplied by the
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`parties with a collective filtration rate in the range of 300-800 ft3/min;
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`• Use of plexi-glass or other similar protective barrier around the witness
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`stand, as already erected by the Court and used in prior trials;
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`• Appropriate distancing between counsel’s tables, the lectern, the jury box,
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`and the Court;
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`• Availability of hand sanitizer containing at least 60% alcohol by volume;
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`• Disinfectant cleaning of the witness box and witness microphone at the
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`conclusion of each witness’s testimony performed by party-affiliated staff
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`with appropriate disinfectants with activity against COVID-19;
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`• Daily surface cleanings; and
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`• Limit on the number of individuals inside the Courtroom at any particular
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`time as follows:
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`o Maximum of 6 party-affiliated trial participants per party including
`corporate representatives and technical personnel, but not
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`including any witness presently testifying; and
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`o Maximum of 7 jurors during trial after jury selection, and a
`maximum of 20 potential jurors or jurors during voir dire and
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`2 The Courthouse employs a highly trained cleaning staff that will clean and disinfect each of the rooms and areas
`identified above on a daily basis. The parties are prepared to work together to procure additional cleaning staff and
`supplies if requested by the Court.
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 10 of 13
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`instructions.
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`(C) Overflow Room
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`One overflow room in the Courthouse will be arranged with a live video feed of the
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`Courtroom. An overflow room would allow for individuals in excess of those permitted in
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`the Courtroom to watch the Courtroom proceedings while maintaining social distancing
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`requirements.
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`Additional precautions are to be taken in the overflow room on days when such
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`room is occupied:
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`• Use of portable HEPA air filtration systems supplied by the parties with a
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`collective filtration rate in the range of 300-800 ft3/min;
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`• Availability of hand sanitizer containing at least 60% alcohol by volume;
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`• Daily surface cleanings; and
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`• Limit on the number of individuals inside the overflow room at any
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`particular time as follows:
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`o Maximum of 30 persons total; and
`o Maximum of 5 party-affiliated trial participants per party. Other party-
`affiliated trial participants will be provided a Zoom link so they can
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`observe the trial virtually (discussed below).
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`(D) Live Feed
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`In order to minimize the number of party-affiliated individuals that will be in the
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`Courthouse on any given day and to accommodate any witness that will testify remotely by
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`video but would otherwise be permitted to observe trial, a live video feed of the trial proceedings
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 11 of 13
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`will be arranged. The parties will work with the Court IT staff to arrange such a stream using the
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`Court’s Zoom platform, and individuals or groups of individuals that access the stream will be
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`required to login using a designated link. This live feed may be accessed by the following party-
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`affiliated individuals outside of the Courthouse:
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`• The parties’ outside counsel, staff, and consultants;
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`• Party in-house counsel disclosed under the Protective Order;
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`• Witnesses on either party’s witness list to the extent permitted under the Protective Order
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`and Pre-trial Order. A fact witness (other than a designated corporate representative) may
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`not observe the testimony of other witnesses until after that witness has completed his/her
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`testimony and been excused by the Court. Expert witnesses and corporate representatives
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`may observe the testimony of other witnesses before they testify—although corporate
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`representatives may be precluded from observing certain sealed testimony because of
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`confidentiality reasons.
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` The public is permitted to listen to the trial proceedings by telephone. The number to access
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`both voir dire and trial proceedings is 1-(551)-285-1373, Meeting ID 160 438 6723, Passcode
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`777035. Recording of the proceedings in any was is not permitted.
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` Virtual trial participants and observers should silence electronic devices other than the
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`devices necessary to their remote participation, close unnecessary computer programs or
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`applications (such as email or calendar notifications), and take steps to remove or minimize
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`anything in their remote workspace that might distract from the integrity of the proceedings.
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`Participants and observers who will not be testifying or presenting matters during the
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`proceedings shall mute their microphones and deactivate their cameras. Participants and
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`observers using multiple devices in a single workspace to access the trial should avoid audio
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`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 12 of 13
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`feedback issues by using the microphone and speakers on only one device at a time, or by using
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`headphones.
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` The Court asks all remote participants to do their best to maintain professionalism in order
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`to conduct a fair and efficient trial. Anyone appearing virtually shall dress in the same manner as
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`they would if they physically appeared in the courtroom. If party members, member of the press,
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`or members of the public become disruptive, the Court may further restrict who is able to view
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`the trial. Remote trial participants and observers should conduct themselves in the same way they
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`would if they were physically present in the courtroom.
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` 4.
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` 5.
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`Bench Conferences
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`There will not be bench conferences in the presence of the jury during trial.
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`Exhibits
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`The use of electronic exhibits for any exhibit displayed and/or given to the jury
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`unless providing or displaying an exhibit electronically is impractical or restricted under
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`the protective order. For the sake of clarity, any witness, counsel, staff, and the Court may
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`each have his or her own set of physical exhibits. However, physical exhibits will not be
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`passed to the jury absent approval by the Court.
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` 6.
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`Lunch For Jurors
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`At the Court’s expense, lunch be brought in for all jurors daily in individual boxes
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`or containers with disposable utensils to avoid unnecessary exposure to those outside the
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`Courthouse during lunchtime. Jurors be instructed to increase social distancing beyond 6
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`feet during eating periods.
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`Apple Inc. v. Koss Corporation
`IPR2021-00255
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`Case 6:21-cv-00057-ADA Document 421 Filed 02/10/21 Page 13 of 13
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`7.
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`Costs
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`Costs for the above that are not borne by the Court will be borne by the parties in
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`equal amounts.
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`IT IS SO ORDERED.
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`SIGNED this 10th day of February, 2021.
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`________________________________
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`Apple Inc. v. Koss Corporation
`IPR2021-00255
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