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`It Will Be Months Before We See the Next
`Patent Jury Trial
`
`The Eastern District of Texas made headlines last week by putting patent infringementjury trials on hold until Marci
`other districts have been abandoning plans to resume them this fall as COVID-19 continues to spread.
`
`By Scott Graham (lauthor/profile/Scott-Grahaml)
`
`| November 25, 2020 at 09:36 AM
`
`https://www.law.com/2020/11/25/it-wi||-be-months—before-we—see-the-next—patent—jury-trial/
`
`SAM S U N G EX 1 042 _ 1/f6
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`SAMSUNG EX. 1042 - 1/6
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`

`

`12/1/2020
`
`It Will Be Months Before We See the Next Patent Jury Trial | Law.com
`
`
`
`(MgesJawcom/contrib/contentluploadslsitesl292/2020l1 1lHarris-County-Article-
`202011242037.jpg) State courts in Harris County, Texas, are conducting in-person jury trials.
`The courts' video, "justice Requiresjurors," shows whatjury selection and trials look like with
`COVlD-19 precautions. (Photo: Harris County District Courts)
`
`After a brief burst of activity in Texas last summer and fall, it appears in-person jury
`
`trials in patent infringement suits will be on ice at least intoJanuary, and possibly
`
`longen
`
`Eastern District of Texas Chiefjudge Rodney Gilstrap resumed patentjury trials back
`
`injuly, followed by his Eastern District colleagues and US. Districtjudge Alan Albright
`of the Western District of Texas.
`
`But following a COVID-19 outbreak in a trade secrets trial in Sherman, Texas, Gilstrap
`
`put patent trials in Marshall on hold until March
`
`‘(mpszllwwwlawcomltexaslawyer/2020I11I23lwith-infections-dangtLusly;
`
`Western District of Texas, Albright doesn’t have a patent trial on his schedule until
`
`mid-january.Judges in Houston, Delaware and Chicago have recently postponed
`
`patent trials that were scheduled for November, though in one instance the reason
`wasn't related to COVlD-i 9.
`
`Gilstrap "ushered them back in, and is now shutting them down," said Cadwalader
`
`Wickersham & Taft partnerjohn Moehringer, whose firm is tracking_patent trials
`
`around the country.
`
`The delays present a double whammy for patent owners. For one, it extends the
`
`time to a potential judgment, or to a settlement driven by an imminent trial date.
`
`Second, it undercuts arguments that the US. Patent and Trademark Office should
`
`reject administrative challenges to patent validity in favor of district courts that
`
`supposedly can get to trial faster.
`
`(litpszllwwwlawcataIog.com/information-security-law-contro|-of-digital-assets12.htmI?
`
`promo&utm term=lc)
`
`Information Security Law: Control of Digital Assets
`
`https://www.law.com/2020/11/25/it-wi||-be-months—before-we—see-the-next—patent—jury—trial/
`
`SAM SU N G EX 1 042 _ Eli‘s
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`SAMSUNG EX. 1042 - 2/6
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`

`

`12/1/2020
`
`It Will Be Months Before We See the Next Patent Jury Trial | Law.com
`
`
`
`(https://www.lawcatalog.com/information-security-Iaw-
`control-of—digitaI-assets12.html?
`_store=|aw_cataIog&utm_source=website&utm_medium=inline&utm_campaign=
`promo&utm_term=lc) BooK
`Information Security Law: Control of Digital Assets provides encyclopedic coverage of both
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`"It's a big deal for anyone with a Texas trial date waiting on a decision to institute"
`
`validity proceedings at the PTO, said Ropes & Gray partner Scott McKeown.
`
`Until just recently, the Eastern and Western Districts of Texas have been the only
`
`game in town for in-person patentjury trials during the pandemic era, Moehringer
`
`said. Now a few districts that have tried tojoin the party have pulled back.
`
`U.S. DistrictJudge Andrew Hanen of Houston had scheduled a trial in a flpute over
`
`oil well technology
`
`,(llwww.courtlistener.comlreca p_lgov.uscourts.txsd.1 1 91 81 1lgov.uscourts.txsd.1 1 91 81 1 .1 .0.pd_f),
`
`for Nov. 30. But on Nov. 19 the Southern District of Texas po_stponed all jgwm
`
`(llwww.txs.uscourts.govlsitesltxslfileslSpecial Order H-2020-24 Eigim
`
`fipd_f) in Houston until at leastjan. 19, 2021, due to public health risks.
`
`In Chicago, U.S. DistrictJudge Matthew Kennelly began a jury trial Nov. 3 in
`
`Neurografix v. Brain/ab, an 8-year-old dispute over MRI technology. It was intended
`to be the last civil trial In the district before a shutdown
`
`,(llwww.ilnd.uscourts.govl assets/ documents/Eighth Amended General Order
`
`20-0012 FINALm, in part to test new safety measures. That included an expanded
`
`jury box with some seats removed to maintain distance between jurors, witnesses
`
`appearing virtually by Microsoft Teams, and a white noise machine for private
`
`conferences with thejudge in lieu of in-chambers discussions. 'They really went
`
`through a tremendous effort to keep everyone protected," said Tensor Law partner
`
`Aaron Filler, a doctor and one of the plaintiffs in the case.
`
`Unfortunately, after the first day of trial, a juror reported respiratory symptoms and
`
`a fever. Because it would take several days for anyone to get COVID-19 test results,
`
`plaintiffs lead counsel Christine Kim of Tensor Law became concerned that the
`
`remainingjurors could be distracted for their own safety, and asked for a mistrial.
`
`Kennelly granted the motion and rescheduled Neurografixfor March.
`
`In Delaware, Chief U.S. DistrictJudge Leonard Stark had been set for a jury trial Nov.
`30 in Guardant Health V. Foundation Medicine
`
`(IliflgesJawxomlcontrib/content/uploads/documentsl292l77895lGuardant—
`
`Health-v.-Foundation-Medicine.Stark-11-17-order.pd_f) in which all witnesses and
`
`ossibl some attorne 5 would a
`y
`y
`
`p
`
`ear b video conference. "I 'ust believe that we
`y
`J
`
`pp
`
`,
`,
`Law Firms Mentloned
`
`https://www.law.com/2020/11/25/it-wi||-be-months—before-we—see-the-next—patent—jury-trial/
`
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`

`12/1 /2020
`
`It Will Be Months Before We See the Next Patent Jury Trial | Law.com
`
`can do this here [in] Delaware, just as other courts have found a way to do it," Stark
`
`said during an Oct. 29 teleconference, while acknowledging that "things could
`
`change quickly."
`
`The Guardanttrial was put on hold
`
`(IliflgesJawxom/contrib/content/uploads/documents/Z92l77895/Guardant—
`
`Health-v.-Foundation-Medicine.Stark-11-17-order.pfif) indefinitely Nov. 2 after
`
`Stark determined that he would first have to hold a hearing on alleged spoliation of
`
`evidence. "It is regrettable. I’m doing it reluctantly," Stark said during a
`
`teleconference. ‘This was going to be my first patentjury trial since March."
`
`Whenever trials do resume, Delaware’sjudges are going to face a particular
`
`@pes & Gray_(/search/?
`gflpes+%26+6ray&$ubmit=Sea
`
`Cadwalader Wickersham & Taft
`.(lsearchl?
`g=Cadwalader+Wickersham+%2€
`
`Baker Botts (/searchl?
`g=Baker+Botts&Submit=Search&
`
`Special Report
`Ltigation: Editor's Picks
`
`challenge, Cadwalader’s Moehringer said. The court has noted in a previous order
`
`coverage_l)
`
`that it already has 200 trials pending in 2021, not even including the trials put over
`from 2020.
`
`In the Eastern District of Texas, the Sherman and Texarkana courthouses have been
`
`closed through the first week of December following the COVlD-19 outbreak in
`
`Sherman. A dispute between Maxell Ltd. and Apple Inc. had been scheduled for trial
`
`on Dec. 7 in Texarkana, but U.S. DistrictJudge Robert Schroeder has continued it for
`three months.
`
`BEST PRACTICES
`
`mmwmg
`About Zoom Trials and
`
`
`
`Learn to Love Litigatig
`Online
`,(llwww.law.com[2020[12[01lhovr
`to-stop-worryi_ng-about-zoom-tria
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`292-780591)
`
`In the Western District of Texas, a trial is scheduled to begin in January before
`
`Albright in VLS/ V. Intel. "As of today, all indications are that it is still on track," said
`
`Baker Botts partner Syed Fareed, who’s not involved in the case but watches
`
`Western District patent litigation closely.
`
`Cadwalader’s Moehringer said he expects trials scheduled forJanuary to be pushed
`
`back if the pandemic remains on anything like its current trajectory. He’s figuring at
`
`least six months before patent trials are back in full swing around the country, and
`
`then 12 to 18 months to clearing the backlog of cases.
`
`
`
`N EWS
`Courts Have Dealt 2
`Strikes to GOP
`Challengers in Pag
`Election Cases. Will SCOTUS Be l
`Third?
`,(llwww.l§w,ggmlthelegalintgllige
`have-dealt-2-strikes-to-ggm
`chaIlengers-in-pa-election-cases-
`will-sggjus-bg—ghg-thirdl)
`
`As for backlogs, Moehringer thinks the kinds of proceedings Stark and Kennelly have
`
`been designing, incorporating both in-person and remote participation, "are going to
`
`N EWS
`
`At US Supreme Court,
`California Defends
`
`have to be part of that answer.”
`
`He thinks counsel will have to get creative too. One example might be an agreement
`
`before trial to proceed with a reduced number ofjurors if some are excused along
`
`the way.
`
`E.
`
`’
`
`comp-19 Cam”
`Restrictions
`.(l/www.law.com/therecorderl20:
`us-supreme-court-california-
`defends-covid-19-capacity;
`restrictionsl)
`
`Gilstrap threw shade on virtual proceedings
`
`.(mpszllwwwaImcms.com/contriblcontent/uploadsldocumentsl403l55387/Solas-
`
`COVlD-19 Doesn't Stem
`
`Flow of Tort Cases,
`Study Shows. Plus:
`Oled-v.-Samsung.Gilstrap-order—continuing,pd_f?
`_ Ha ens Berman Remembers Ton
`_
`.
`,
`WW—Mmmgnfikl
`eart&utm term= aW).
`WIaw.com 2020 11 25 oov
`19-doesnt-stem-flow-of-tort-case:
`
`though, in his order continuing cases in his courtroom. "This Court is persuaded,"
`
`Gilstrap wrote, "that the remote, sterile, and disjointed reality of virtual proceedings
`
`cannot at present replicate the totality of human experience embodied in and
`
`study-shows-plus-hagens-bermai
`remembers-tony-shapirol),
`
`required by our Sixth and Seventh Amendments."
`
`f SHARE
`
`:7 SHARE
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`12/1 /2020
`
`It Will Be Months Before We See the Next Patent Jury Trial | Law.com
`
`Scott Graham
`
`Scott Graham focuses on
`intellectual property and the US.
`Court of Appeals for the Federal
`Circuit. He writes ALM's Skilled in
`the Art IP briefing. Contact him at
`sgraham@alm.com.
`
`_( Itherecorder/author/profile/Scott-Graham/)
`
`More from this author -' (Itherecorder/authorlprofileIScott-Grahaml)
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