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`Texas Patent Trials Halted Due To COVID-19 Spike - Law360
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`Texas Patent Trials Halted Due To COVID-19 Spike
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`By Katie Buehler
`Law360 (November 20, 2020, 9:18 PM EST) -- Eastern District of Texas Judge Rodney Gilstrap announced Friday he's postponing all jury
`trials until March, a decision he was reluctant to make but felt necessary due to the rapidly increasing number of COVID-19 cases in
`Texas and the travel restrictions out-of-state attorneys and witnesses were facing.
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`Judge Gilstrap's announcement comes days after chief judges in the Northern and Western districts of Texas postponed all trials
`scheduled through the end of the year and after the Southern District of Texas postponed all trials scheduled through Jan. 19.
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`Judge Gilstrap said it was a difficult call to make because of the time and effort court staff had undertaken to resume in-person trials
`during the pandemic. But the judge, who presides over one of the busiest patent dockets in the country, ultimately said he felt compelled
`to order continuances in cases slated for trial.
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`"We now face a dangerously rising rate of increase in COVID-19 cases and swelling hospitalizations in this district and across the
`country," Judge Gilstrap said. "Despite the court's optimism that an efficacious vaccine may become widely available in the coming
`months, the court is 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."
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`In a footnote, Judge Gilstrap alluded to a recent COVID-19 outbreak in U.S. District Judge Amos L. Mazzant III's Sherman, Texas,
`courthouse, about 150 miles northwest of Marshall. That brought home the changing reality of the pandemic, he said.
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`Judge Gilstrap entered identical orders in three patent cases that were on deck for a Dec. 4 start date, pushing them to March 1.
`Although the three were set for that date, only one would have gone to trial. As part of his COVID-19 protocols, Judge Gilstrap has only
`tried one case per month since he restarted trials in August.
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`He also had three patent cases lined up for Jan. 4, but they have now been pushed to April 5, according to court records.
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`Samsung Display Co., Sony Interactive Entertainment America LLC and Cisco Systems Inc., the three defendants that had been scheduled
`for Dec. 4, had all filed motions this week to delay their trials by three months. They cited the recent spike in COVID-19 cases
`nationwide and travel restrictions that require self-quarantine periods for their non-Texas attorneys and witnesses, the timing of which
`would possibly affect their ability to be with their families over the winter holidays.
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`Judge Gilstrap addressed those concerns in his order.
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`"Mindful of its docket largely populated with complex civil cases, where parties, witnesses, and staff often reside internationally or in
`domestic locations with a variety of travel restrictions and quarantines, the court feels compelled to find that in-person jury trials must be
`continued," he said.
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`Samsung and Sony also referred in their continuance motions to the Sherman outbreak. In that case, Judge Mazzant initially
`postponed the trial for two weeks after learning a dismissed juror had tested positive for the virus, but as the case count increased to
`15, he ultimately granted a mistrial Nov. 17, saying he'll reschedule for sometime in 2021.
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`"Trials during COVID are safe until they quickly pivot to very dangerous, and that pivot point is invisible and impossible to detect until it is
`too late," Sony said in its motion.
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`Solas OLED Ltd., who has accused Samsung of infringing three mobile screen display technology patents, was the only plaintiff who
`challenged the continuance motions before the judge issued the delay order.
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`On Friday, Solas argued a three-month delay would "severely prejudice" it and that Samsung's belief that a March trial would be safer
`than a December one is an "incorrect assumption."
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`"Finally, this court has successfully tried numerous cases during the pandemic while mitigating the risk to jurors, witnesses, attorneys and
`court staff," Solas said. "There is no reason why this trial should be any different."
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`Texas currently leads the nation in COVID-19 cases, reporting more than 1 million since the pandemic started. Over the last seven days
`alone, the state has recorded more than 64,000 new cases, according to data from the state's Department of State Health Services.
`Texas has the second-highest total death count with more than 20,000 COVID-19 deaths. Only New York has more, with over 33,000
`deaths.
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`Jennifer Haltom Doan, a partner with Haltom & Doan in Texarkana, who tried a patent case in Judge Gilstrap's court in October, called the
`Sherman outbreak "really unfortunate" but also said courts have to find a way to proceed even during the pandemic to avoid backlogs
`and unjustly hurting parties involved in the disputes.
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`"It doesn't change how I feel about the need to try these cases and not have the requests stack up and delay, or to leave prisoners in
`prison when they want to have their cases tried," she said.
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`Since the Sherman mistrial, the clerk's office in the Eastern District's Tyler courthouse has closed after a court staffer tested positive for
`the virus, and the district's Texarkana courthouse, which also houses the Western District of Arkansas, has been closed until Dec. 7 after
`two non-U.S. Courts employees who worked in the building tested positive for the coronavirus, Eastern District clerk David O'Toole said.
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`Judges in the Eastern District, which has held 20 in-person jury trials since the start of the pandemic, started making calls to postpone
`trials and hold hearings remotely in their individual courthouses last week, before the Sherman mistrial was called.
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`U.S. Judge Robert W. Schroeder III, in Texarkana, told Apple Inc. and Maxell Ltd. during a Nov. 12 hearing that he was continuing their
`patent dispute to March from its Dec. 7 trial setting, although the court record doesn't indicate his reasoning.
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`Judge Schroeder has also approved virtual hearings. He's allowing post-trial hearings between VirnetX Inc. and Apple Inc. after a $502.8
`million infringement verdict to be held via videoconference.
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`Judge Mazzant, who had successfully held seven trials without reports of positive test results before the current outbreak, announced
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`Nov. 17 he would postpone all trials through the end of the year, and the Sherman courthouse is closed out of precaution until Dec. 4.
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`Haltom & Doan said judges in the Eastern District have worked hard to prevent an outbreak like Sherman's. Along with employing various
`safety procedures in their respective courthouses, the judges have maintained a policy of allowing potential jurors to opt out for any
`COVID-19-related reason.
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`Cisco had applauded those efforts in its Nov. 19 motion to continue, but argued that the scales favored delaying trials.
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`"Cisco notes the remarkable efforts of this court — and other courts in the district — to keep the courthouse doors open and continue to
`resolve cases, fairly balancing the need to proceed with cases against the ascertainable health risks at any given time," the company
`said. "In striking that balance here, Cisco respectfully suggests that the scale favors a brief continuance of this case."
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`Michael Smith, partner in charge of Siebman Forrest Burg & Smith LLP's Marshall office, said it will be interesting to see if the
`demographics of jury pools change after this second wave of COVID-19 cases, as well as the Sherman outbreak. He said the district could
`find that fewer Texans are willing to participate in trials.
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`"I believe that what a juror thought in June and in September is different," he said. Future juries could be "significantly more concerned
`than they are now."
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`Judge Gilstrap noted in his Friday order that he will hold some motion practice via virtual proceedings during this postponement but that
`it is only fair to hold jury trials in person.
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`"Jury trials are innately human experiences," the judge said in a footnote. "More is often communicated in a courtroom nonverbally than
`verbally … Such factors as cadence, tone, inflection, delivery and facial expression are as vital to due process as is the applicable statute
`or case law."
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`--Editing by Gemma Horowitz.
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