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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 Marct
`other districts have been abandoning plans to resume them this fall as COVID-19 continues to spread.
`
`By Scott Graham (/author/profile/Scott-Graham/)
`
`| November 25, 2020 at 09:36 AM
`
`https:/Awww.law.com/2020/11/25/it-will-be-months-before-we-see-the-next-patent-jury-trial/
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`12/1/2020
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`It Will Be Months Before We See the Next Patent Jury Trial | Law.com
`
`(/images.law.com/contrib/content/uploads/sites/292/2020/11/Harris-County-Article-
`202011242037.jpg) State courts in Harris County, Texas, are conducting in-person jury trials.
`The courts’ video, “Justice Requires Jurors,” shows whatjury selection andtrials look like with
`COVID-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 infringementsuits will be on ice at least into January, and possibly
`longer.
`
`Eastern District of Texas ChiefJudge RodneyGilstrap resumed patentjury trials back
`in July, followed by his Eastern District colleagues and U.S. District Judge Alan Albright
`of the Western District of Texas.
`
`But following a COVID-19 outbreak in a trade secrets trial in Sherman, Texas,Gilstrap
`put patenttrials in Marshall on hold until March
`(https://www.law.com/texaslawyer/2020/11/23/with-infections-dangerously-
`
`Western District of Texas, Albright doesn’t have a patenttrial on his schedule until
`mid-January. Judges in Houston, Delaware and Chicago have recently postponed
`patenttrials that were scheduled for November, thoughin one instance the reason
`wasn't related to COVID-19.
`
`Gilstrap “ushered them backin, and is now shutting them down,” said Cadwalader
`
`Wickersham & Taft partner John Moehringer, whosefirm is trackingpatenttrials
`
`around the country.
`
`The delays present a double whammyfor patent owners.For one,it extends the
`time to a potential judgment, or to a settlement driven by an imminenttrial date.
`Second,it undercuts argumentsthat the U.S. Patent and Trademark Office should
`reject administrative challenges to patentvalidity in favor of district courts that
`supposedly can gettotrial faster.
`
`(https://www.lawcatalog.com/information-security-law-control-of-digital-assets12.html?
`
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`Information Security Law: Control of Digital Assets
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`https://www.law.com/2020/11/25/it-will-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
`
`
`
`(https://www.lawcatalog.com/information-security-law-
`control-of-digital-assets12.html?
`___store=law_catalog&utm_source=website&utm_medium=inline&utm_campaign=
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`“It's a big deal for anyonewith a Texastrial date waiting on a decisionto 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
`gamein townforin-person patentjury trials during the pandemic era, Moehringer
`said. Now a few districts that have tried to join the party have pulled back.
`
`U.S. District Judge Andrew Hanenof Houston had scheduleda trial in a dispute over
`oil well technology
`(//‘www.courtlistener.com/recap/gov.uscourts.txsd.1191811/gov.uscourts.txsd.1191811.1.0.pdf)
`
`for Nov. 30. But on Nov. 19 the Southern District of Texas postponedall jury trials
`(//www.txs.uscourts.gov/sites/txs/files/Special Order H-2020-24 Eighth
`
`19.pdf) in Houston until at least Jan. 19, 2021, due to public healthrisks.
`
`In Chicago, U.S. District Judge Matthew Kennelly began a jury trial Nov. 3 in
`Neurografix v. Brainlab, an 8-year-old dispute over MRI technology.It was intended
`to be the lastcivil trial in the district before a shutdown
`
`(//www.ilnd.uscourts.gov/_assets/_documents/Eighth Amended General Order
`20-0012 FINAL.pdf), in part to test new safety measures. That included an expanded
`jury box with some seats removed to maintain distance between jurors, witnesses
`appearingvirtually by Microsoft Teams, and a white noise machine for private
`conferences with the judgein 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 ofthe plaintiffs in the case.
`
`Unfortunately, after the first day oftrial, 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 concernedthat the
`remaining jurors could be distracted for their own safety, and asked for a mistrial.
`Kennelly granted the motion and rescheduled Neurografix for March.
`
`In Delaware, Chief U.S. District Judge Leonard Stark had been setfor a jury trial Nov.
`30 in GuardantHealth v. Foundation Medicine
`
`(//images.law.com/contrib/content/uploads/documents/292/77895/Guardant-
`Health-v.-Foundation-Medicine.Stark-11-17-order.pdf) in which all witnesses and
`ossibly some attorneys would appear by video conference. “I just believe that we
`P
`y
`y
`PP
`y
`J
`https://www.law.com/2020/11/25/it-will-be-months-before-we-see-the-next-patent-jury-trial/
`
`.
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`Law Firms Mentioned
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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 wayto do it,” Stark
`said during an Oct. 29 teleconference, while acknowledging that “things could
`change quickly.”
`
`The Guardanttrial was put on hold
`(/images.law.com/contrib/content/uploads/documents/292/77895/Guardant-
`Health-v.-Foundation-Medicine.Stark-11-17-order.pdf) 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 doingit reluctantly,” Stark said during a
`teleconference. “This was going to be myfirst patent jury trial since March.”
`
`Ropes & Gray(/search/?
`q=Ropes+%26+Gray&Submit=Sez
`
`Cadwalader Wickersham & Taft
`(/search/?
`q=Cadwalader+Wickersham+%2€
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`Whenever trials do resume, Delaware's judges are going to face a particular
`challenge, Cadwalader’s Moehringer said. The court has noted in a previous order
`that it already has 200 trials pending in 2021, not even including the trials put over
`from 2020.
`HowtoStopWorrying
`About Zoom Trials and
`In the Eastern District of Texas, the Sherman and Texarkana courthouses have been
`Learn to Love Litigating
`Online
`(//www.law.com/2020/12/01/how
`
`to-stop-worrying-about-zoom-triz
`
`and-learn-to-love-litigating-online
`292-78059/)
`
`closed throughthefirst week of December following the COVID-19 outbreak in
`Sherman. A dispute between Maxell Ltd. and Apple Inc. had been scheduledfor trial
`on Dec. 7 in Texarkana, but U.S. District Judge Robert Schroeder has continuedit for
`three months.
`
`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 thatit is still on track,” said
`Baker Botts partner Syed Fareed, who's notinvolved in the case but watches
`WesternDistrict patentlitigation closely.
`
`Cadwalader’s Moehringer said he expectstrials scheduled for January to be pushed
`backif the pandemic remains on anythinglike its current trajectory. He’s figuring at
`least six months before patenttrials are back in full swing around the country, and
`then 12 to 18 monthsto clearing the backlog of cases.
`
`As for backlogs, Moehringer thinks the kinds of proceedings Stark and Kennelly have
`been designing, incorporating both in-person and remoteparticipation, “are going to
`haveto be part of that answer.”
`
`He thinks counsel will have to get creative too. One example might be an agreement
`beforetrial to proceed with a reduced number ofjurors if some are excused along
`the way.
`
`
`
`NEWS
`Courts Have Dealt 2
`Strikes to GOP
`Challengers in Pa.
`Election Cases. Will SCOTUS Be |
`Third?
`(//‘www.law.com/thelegalintellige
`have-dealt-2-strikes-to-gop-
`challengers-in-pa-election-cases-
`will-scotus-be-the-third/)
`
`NEWS
`
`a
`
`At US Supreme Court,
`California Defends
`COVID-19 Capacity
`Restrictions
`(//www.law.com/therecorder/202
`us-supreme-court-california-
`defends-covid-19-capacity-
`restrictions/)
`
`r
`
`Gilstrap threw shadeon virtual proceedings
`COVID-19 Doesn't Stem
`(https://www.almcms.com/contrib/content/uploads/documents/403/55387/Solas-
`Flow of Tort Cases,
`
`Study Shows.Plus:
`Oled-v.-Samsung.Gilstrap-order-continuing.pdf?
`_ Hagens Berman Remembers Ton
`.
`:
`.
`utm_source=email&utm_medium=enl&utm_content=20201120&utm_campaign=skikedintbeart&utm_term=law),
`(//www.law.com/2020/11/25/cov
`though,in his order continuing cases in his courtroom. “This Court is persuaded,”
`19-doesnt-stem-flow-of-tort-case:
`Gilstrap wrote, “that the remote,sterile, and disjointed reality of virtual proceedings
`cannotat presentreplicate the totality of human experience embodied in and
`required by our Sixth and Seventh Amendments.”
`
`study-shows-plus-hagens-bermal
`remembers-tony-shapiro/)
`
`=
`
`f SHARE
`
`wv 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 U.S.
`Court of Appeals for the Federal
`Circuit. He writes ALM's Skilled in
`the Art IP briefing. Contact him at
`sgraham@alm.com.
`
`_( /therecorder/author/profile/Scott-Graham/)
`
`More from this author — (/therecorder/author/profile/Scott-Graham/)
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