Positive COVID Tests Derail Intel Patent Trial In WDTX
`By Ryan Davis
`Law360 (April 26, 2022, 1:16 PM EDT)-- After multiple positive COVID-19 tests amongparticipants, U.S, District Judge Alan Albright of the WesternDistrict of Texas on Tuesday canceled thetrial in VLSI'sbillion-dollar computerchip patent suit against Intel, and
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`said it would be rescheduledlater. VLSI's billion-dollar patent trial against Intel was canceled Tuesday, after multiple positive COVID-19 tests amongparticipants, (AP Photo/Paul Sakuma)
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`Onthe seconddayofthe trial, which kicked off on Mondayin Austin, the judge told the jurors there had been positive COVID tests among people working on the case for one ofthe parties, according to a source close to the matter,
`JudgeAlbright then said that out of concern for everyone's safety, he was ending thetrial. He said it would start overlater in the year with a different jury.
`The jurors were informedof the positive tests as soon as theyarrived for the day, and the courtroom had beencleared of everyone except for courtroom staff and two lawyers for eachside.
`Judge Albright's COVIDsafety protocolfor the trial consisted of a questionnaire asking anyoneentering the courthouseif they had been diagnosed with COVIDin the past three weeks,andif they were experiencing symptomsofthe disease. People who answered
`yes were advised notto enter the building.
`U.S. Magistrate Judge DerekGilliland, who oversaw juryselection, told the parties at a hearing before thetrial that nothing was known aboutthe vaccination status of the potential jurors, and that no questions about that subject would be permitted, due to the
`possibility of potential violations of the Health Insurance Portability and Accountability Act.
`The issue came up whenoneofthe attorneys askedif they would knowif the jurors were vaccinated or not, and JudgeGilliland responded that information wasnotavailable, said Tim Dewberry of Folio Law Group PLLC, an Austin-based patent attorney whois
`following the case andlistened to the audio of the hearing.
`The judge theninstructed the attorneys that the court "did not want the parties to question the jurors aboutthat during voir dire, and the reasoning for that was that the court thoughtthere could be a HIPAA violation in doing so," Dewberry said, adding that
`"there was no further pushback from the parties at that point."
`The U.S. Department of Health and Human Services website states that HIPAA's privacy rule "does not prohibit any person... from asking whetheran individual has received a particular vaccine, including COVID-19 vaccines."
`The HHSsite explains thatthe rule only regulates how entities like health plans and health care providers can use ordisclose protected health information, and does not apply whenanindividual is asked about vaccination status by employers, stores or other
`individuals.
`Laura Carroll of Burns & Levinson LLP, an IP attorney following the case, said that HIPAA wouldn'tapplyto asking jurorsif they are vaccinated, and that "one gets tired of hearing, ‘That's a HIPAA violation!’ tossed around routinely, and inaccurately."
`The trial is the third in a series of high-stakes disputes between the companies, each involving different patents. It got underway Monday with opening statements and witness testimony. VLSI is seeking around$1billion in damages from Intel.
`VLSI, which is owned by investment funds with assets managed by Fortress Investment Group LLC, accusesIntel of infringing a patent originally issued to semiconductor maker NXP BV,
`In thefirst trial in March 2021, a Wacojury returned one ofthe largestpatentverdicts in history, finding that Intel infringed two VLSI patents — rejecting an argumentthatoneof themis invalid as anticipated — and awarding $2.17billion in damages.
`In the secondtrial, another Waco jury concluded last April that Intel did not infringe either of the two patentsin that case, and rejected VLSI's bid for $3billion in damages, Post-trial motions are pending in both of those cases,
`Intel said in a statementafter the trial was canceled that "this case demonstrates that the U.S, patent system is in urgent needof reform,"
`Intel soughtinter partes review of the patentatissue in the case at the PatentTrial and Appeal Board. The board refused to review the patentin 2020, citing the so-called Fintiv rule that it can exerciseits discretion to deny an IPRpetitionif its decision would be
`due aftera trial in district court is over.
`After that ruling, the Texastrial was postponed multiple times, and Tuesday's cancellation will delay it even further. Intel said that "this case is not alone" and that "nearly all future trial dates relied on by the board to deny IPRs ultimately changed."
`“Reform is needed to restore the IPR processtoits full strength so that meritless claims, like the ones brought by VLSI, can be resolved by impartial expert patent judges without requiring expensivelitigation or extorted settlements,"Intel said.
`Intel noted that the Fintiv rule was putin place by former U.S, Patent and Trademark Office Director Andrei Iancu, who is nowapartneratIrell & Manella LLP, the firm that represents VLSI.
`Counselfor VLSI did not respond to a request for commentaboutthetrial's cancellation.
`On Monday,Intel attorney William Lee of WilmerHale told jurors they would learn from the evidenceIntel plans to presentthatits allegedly infringing technology "is different from what's describedin the... patent."
`VLSI attorney Morgan ChuofIrell & Manella LLP told the jury that NXP is focused on developing chips, andleaveslicensing ofits patents to VLSI.
`The patentatissue in thelatesttrial is U.S. Patent No. 7,606,983.
`VLSIis represented by Morgan Chu, Benjamin Hattenbach,lian Jablon, Alan Heinrich, Christopher Abernethy, Ian Washburn, AmyProctor, Elizabeth Tuan, Dominik Slusarczyk, Charlotte Wen, Benjamin Monnin, Jordan Nafekh and Babak Redjaian ofIrell & Manella
`LLP, Andy Tindel, J, Mark Mann and G, Blake Thompsonof MannTindel Thompson,and Craig Cherry of Steckler Wayne Cochran Cherry PLLC,
`Intel is represented by William Lee, Louis Tompros, Kate Saxton, Gregory Lantier and Amanda Majorof WilmerHale, J. Stephen Ravel and Kelly Ransom ofKelly Hart & Hallman LLP, Harry Gillam Jr, of Gillam & Smith LLP, and James Wren of Baylor Law School,
`The caseis VLSI TechnologyLLCv. Intel Corp., case number 1:19-cv-00977,in the U.S.District Court for the Western District of Texas.
`--Editing by Robert Rudinger,
`Update: This story has been updated with more information about HIPAA and a commentfrom Intel.
`Correction: An earlier version of this story incorrectly described the relationship between VLSI and Fortress. The error has been fixed.
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