Chief Judge Stark on Friday scheduled the first post-COVID-19 patent jury trial that I've seen, in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB, D.I. 487 (D. Del. Oct. 16, 2020). (The potential Judge Noreika trial I mentioned recently is not going forward).
The Court had offered the November 30 date late last month. The defendant objected to it due to a conflict. The defendant also argued that the jury pool will not be representative, lacking older jurors, and that holding a trial would go against CDC guidance.
The Court was not persuaded. It did, however, set the following restrictions:
- No live witnesses: The Court accepted a proposal that since not all witnesses can testify live, all will testify by video.
- Five representatives per side in courtroom: Unlike in some other cases, Judge Stark held that each side can have five representatives, and that they can change out at any time (they need not be the same five representatives).
- Counsel may fully participate remotely: This includes counsel delivering an opening statement or closing argument, examining a witness, or otherwise participating.
- There will be a live video feed to an overflow courtroom
The Court also directed the parties to review the Jury Restart Guidelines and continue coordinating with the Court about how to handle the trial.
Near-Term Outlook Remains Dim for Patent Jury Trials
As I've said, 2020 is probably out of the question for D. Del. jury trials at this point, unless you are already in the process of scheduling them, but 2021 is also looking difficult. In his order, Chief Judge Stark described the Court's backlog:
If trial were delayed once again, it is entirely unclear when it would occur. There are at least 200 civil jury trials scheduled for 2021 in the District of Delaware (a count which does not include criminal trials, which must take priority, and also does not include civil trials that have been continued and are still awaiting a new trial date), and due to current restrictions only one jury trial can proceed at a time.
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