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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
`
`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.
`
`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.
`
`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.
`
`"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."
`
`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.
`
`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.
`
`He also had three patent cases lined up for Jan. 4, but they have now been pushed to April 5,
`according to court records.
`
`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.
`
`Judge Gilstrap addressed those concerns in his order.
`
`"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.
`
`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
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`Nov. 17, saying he'll reschedule for sometime in 2021.
`
`"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.
`
`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.
`
`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."
`
`"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."
`
`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.
`
`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.
`
`"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.
`
`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.
`
`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.
`
`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.
`
`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.
`
`Judge Mazzant, who had successfully held seven trials without reports of positive test results before
`the current outbreak, announced 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.
`
`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.
`
`Cisco had applauded those efforts in its Nov. 19 motion to continue, but argued that the scales
`favored delaying trials.
`
`"Cisco notes the remarkable efforts of this court — and other courts in the district — to keep the
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`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."
`
`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.
`
`"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."
`
`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.
`
`"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."
`
`--Editing by Gemma Horowitz.
`
`All Content © 2003-2021, Portfolio Media, Inc.
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