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`How Texas Judges Have Kept IP Trials Moving During
`COVID
`
`By Ryan Davis
`Law360 (April 6, 2021, 6:19 PM EDT) -- After a coronavirus outbreak at a trial last fall spurred Texas
`courts to postpone in-person proceedings for months, several Lone Star State judges resumed jury
`trials in March, and some of the attorneys who won sizable verdicts said the courts safely navigated
`the pandemic to keep cases moving.
`
`The Paul Brown Federal Building and United States Courthouse in the Eastern District of Texas, where a jury
`ultimately awarded a $152 million verdict in a trade secrets case that was derailed by the pandemic.
`(Renelibrary/Wikimedia Commons/CC BY-SA 3.0)
`
`Judges Rodney Gilstrap and Amos Mazzant III of the Eastern District of Texas oversaw two IP trials
`each last month, the first held in the district since a November trial there resulted in 15 participants
`testing positive for COVID-19.
`
`Both judges have more planned for April, as does Judge Alan Albright of the Western District of
`Texas, who also held a trial in March that resulted in one of the largest IP verdicts in history. There
`were no reported virus issues connected to last month's trials.
`
`Attorneys for the winning sides said the safety measures the judges put in place, as well as
`cooperation among the trial participants, ensured the cases were able to proceed to a verdict without
`any COVID-related disruptions.
`
`"I think the lesson is you can run a jury trial in a pandemic if everybody's on the same page, and
`everybody here was," said Doug Kline of Goodwin Procter LLP, who participated in one of Judge
`Gilstrap's trials. "It seemed safe, and no issues arose during the trial."
`
`Post-Outbreak Retrial Proceeds Without a Hitch
`
`One of Judge Mazzant's March trials was a retrial of the November case derailed by the pandemic.
`The second time around, the jury in Sherman, Texas, found Karya Property Management LLC
`misappropriated software company ResMan LLC's trade secrets, awarding $152 million on March
`18.
`
`Cristina Rodriguez of Hogan Lovells, an attorney for ResMan, said the new trial was free of virus-
`related disruptions and that the safety measures Judge Mazzant put in place proved effective.
`
`"The judge was just very conscious of everybody being safe and well, and I think everybody was
`trying hard to follow the rules and do their best. I think it was just a very positive experience
`overall," she said. "It's a great town, and I'd go back there any day, pandemic or not."
`
`The judge used mostly the same procedures at the second trial that were in place at the first, with
`some additional limits on the number of people who could sit at the counsel table, Rodriguez noted.
`
`Citing privacy, Rodriguez said she couldn't disclose if any of those who tested positive at the first trial
`were on the ResMan team, but that "we felt very safe and very comfortable, frankly both times."
`
`Judge Mazzant required face coverings for everyone in the courtroom throughout much of the trial,
`apart from when attorneys were speaking or when witnesses testified behind plexiglass barriers.
`
`"The only two little bubbles where you didn't wear the mask were right around the podium and in the
`witness box, but everybody else had a mask on the entire time," Rodriguez said.
`
`She added the judge stressed that unmasked attorneys had to stay in place and not walk around the
`
`IPR2021-01342
`Ocean Semiconductor Exhibit 2026
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`courtroom when they were speaking, and also required masks to be worn when attorneys handed
`something to the witness and during bench conferences.
`
`Judge Mazzant did not require COVID tests during the eight-and-a-half-day trial, and the ResMan
`team stated they did not get them, but everyone was nonetheless "extremely careful," Rodriguez
`said. They all wore masks when working together and agreed to stick to their hotels, workspaces and
`the courthouse — not going out to restaurants or anywhere else.
`
`"We were really just trying to be conscious of being as careful as we possibly could and being
`respectful of the process, so that we would maximize our chances of getting to a verdict," she said.
`
`None of the witnesses testified remotely by videoconference, a technique some courts have used
`during the pandemic, so "other than the masks and the plexiglass, it was like a regular trial,"
`Rodriguez said.
`
`Counsel for Karya Property Management did not respond to a request for comment.
`
`Seeing the Faces of Masked Jurors
`
`The day after the ResMan verdict, an Eastern District of Texas jury in the city of Marshall returned a
`verdict that Apple infringed a personalized media communications decryption patent and awarded
`$308.5 million.
`
`Kline of Goodwin Procter, an attorney for PMC, said all of the participants in the trial before Judge
`Gilstrap worked together to keep it safe.
`
`"I never got the impression that anybody was irritated or impatient or annoyed with the procedures,"
`he said. "Everybody seemed committed to doing what the court wanted us to do to make sure the
`whole thing proceeded smoothly."
`
`While Judge Gilstrap required face coverings in the courtroom, he "made an express point that he
`thought it's very important for the lawyers to see the jurors' faces," Kline said. As a result, while
`attorneys were required to wear masks except when speaking, each juror was given both a plastic
`face shield and a clear mask and told to wear one or the other or both.
`
`Since it was possible to read the jurors' facial expressions behind the clear plastic, "eventually you
`could sort of forget about it," Kline said.
`
`While the judge did not require trial participants to be tested for COVID before entering the
`courthouse, Kline said his team was nevertheless tested every day at their hotel.
`
`"You are working essentially 24 hours a day in close quarters with people," he said. "We just felt as
`though it would be a comfort level for everyone to get tested every day. Gratefully, nobody had a
`positive test, and it did give us a level of comfort with one another."
`
`Judge Gilstrap did limit the number of attorneys who could sit together at the counsel table. While
`that somewhat limited the ability of members of the trial team to talk to one another, they could still
`communicate electronically, Kline said, adding that "once you understand the rules, you live with
`them and they're fine."
`
`Counsel for Apple did not respond to a request for comment.
`
`More Trials to Come
`
`The other high-profile patent trial in March was before Judge Albright in the Western District of Texas,
`where a jury in Waco on March 2 told Intel to pay $2.18 billion for infringing VLSI Technology
`circuit patents.
`
`Unlike the Eastern District judges, he required daily COVID tests for attorneys before they could
`enter the courthouse and encouraged testing for jurors. However, at his next trial, which began April
`1 in a patent case against Roku by ESW Holdings, he eliminated the testing requirement.
`
`Judge Albright also provided live audio of the Intel and Roku trials to the public in an effort to limit
`the number of people in the courtroom. He otherwise used similar procedures to the Eastern District
`judges, including masks and limits on the number of trial participants.
`
`Michael Smith of Siebman Forrest Burg & Smith LLP, an attorney based in Marshall, said all three
`judges are planning to hold several IP trials in the near future.
`
`After not holding trials for several months, Judge Gilstrap has been scheduling two a month to get
`through the backlog that has developed, "so we're seeing lots of activity," Smith said.
`
`Judge Gilstrap had two trials in March and set two trial dates in April, and Smith estimated that two
`trials might need to be held each month for a few months after that. However, the Eastern District
`still had more trials on tap a few years ago when it received the bulk of the country's patent cases,
`he noted. Judge Mazzant has at least one trial scheduled for April, and Judge Albright has two.
`
`Kline said that since the PMC trial concluded, he has heard from a number of colleagues expecting to
`have trials during the pandemic who were looking for advice on how to manage.
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`IPR2021-01342
`Ocean Semiconductor Exhibit 2026
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`"I've gotten calls from people around the country asking, what was it like? How did you deal with this
`and that?" he said. "It's an interesting time that we're all trying to figure out."
`
`--Editing by Philip Shea.
`
`All Content © 2003-2021, Portfolio Media, Inc.
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`IPR2021-01342
`Ocean Semiconductor Exhibit 2026
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