A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: COVID-19

Court Orders Remote Bench Trial Despite Defendants' Emergency Due Process Objections

Andrew E. Russell, Aug. 18, 2020
Bench Trial COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Chief Judge Stark today denied an emergency request by defendants to delay a remote bench trial scheduled to start next week.

The Court had previously solicited the parties' preferences on how to handle trial and, before the pretrial conference, ordered that the trial would be fully remote. At the pretrial conference, neither party objected to that ruling.

Last week, however, Defendants sought emergency relief to delay the trial in order to convert it to a "partially remote" trial, submitting a declaration from their client that they had not authorized their now-former in-house counsel to agree to a fully virtual trial.

They cited due process rights and the importance of in-person testimony …

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No New Trial After Both Sides Cited Coronavirus Benefits of Invention in March Trial

Andrew E. Russell, Aug. 17, 2020
Post-trial Motions COVID-19

On Friday, Chief Judge Stark issued his opinion on post-trial motions in Pacific Biosciences of California, Inc. v. Oxfore Nanopore Tech., Inc., C.A. No. 17-275-LPS-CJB (D. Del.).

You may remember it as the case which made news at the time due in part to the mention of coronavirus in the opening statements.

The trial took place March 9-18, just as the first COVID-19 lock downs were ramping up.

Incredibly, both parties touted coronavirus-related effects of their products in their opening statements at trial. Plaintiff suggested that its product could "help develop a vaccine" for the coronavirus. Defendant went even further:

[Defendant made] a product that is changing lives as we speak. Whether it is helping people …
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Judge Andrews "Really Doubts A Jury Trial Is Feasible" in September Due To Travel Concerns

Nathan R. Hoeschen, Aug. 14, 2020
Jury Trials COVID-19

Artist's Rendering of Delaware Courtroom in September
Artist's Rendering of Delaware Courtroom in September Jean Wimmerlin, Unsplash

Judge Andrews recently postponed another patent jury trial that had been scheduled for September 21, 2020.

The ruling in Baxalta Incorporated v. Bayer Healthcare LLC, C.A. No. 17-1316-RGA, D.I. 529 (D. Del. Aug 12, 2020) followed the submission of a joint status report where the plaintiffs suggested the case should go forward, citing prejudice to them if the case remains unresolved for the foreseeable future.

The defendant responded by pointing to the obvious difficulties of holding a trial when "no witness resides in Delaware" and lead counsel and their "entourages" are from out of state.

Judge Andrews notably stated that he believed it would be possible …

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Time to Decision on Motions Largely Unaffected by Lack of Trials

Nathan R. Hoeschen, July 31, 2020
Congestion COVID-19

Delaware suspended jury trials on March 18, 2020 and they are currently not scheduled to resume until the end of August. Although bench trials are technically allowed under this scheduling order,only one has taken place so far.

With this major time-sink gone, it struck IP/DE that we might see more opinions being issued faster. But so far this does not seem to be the case.

According to DocketNavigator, the Court issued 25 discrete opinions on 12(b)(6) motions between March 18th and last week (not counting decisions on objections to R&R's), with an average decision time of 164 days from the filing of the last brief. During the same period last year, however, the Court issued 32 such opinions, …

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Judge Andrews Sets COVID-19 Guidelines for September ANDA Trial

David M. Fry, July 29, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

This afternoon, Judge Andrews set guidelines for a bench trial that's scheduled to start on September 14, 2020. The trial will include some live witness testimony (from "the five or so witnesses who are able to testify in person"), along with video testimony from "[t]he three or so witnesses who are unable or unwilling to testify in person[.]"

Only a small number of attorneys will be allowed in the courtroom ("probably two per side"), and "[m]asking and social distancing will be enforced." Everyone else will have to watch the proceedings via live stream, with the expectation "that very few people will decide it is necessary to come to the courthouse."

Stay tuned …

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Another Jury Trial Postponement

Andrew E. Russell, July 20, 2020
COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Last week, in between Judge Stark's postponement of the Sunoco trial and the Court's extention of its ban on jury trials, Judge Andrews also postponed a scheduled August 18 jury trial, without setting a new trial date:

ORAL ORDER: The jury trial scheduled for August 18, 2020, is POSTPONED. Ordered by Judge Richard G. Andrews on 7/15/2020. (nms) (Entered: 07/15/2020)

ChanBond, LLC v. Atlantic Broadband Group, LLC, C.A. No. 15-842-RGA, D.I. 513 (D. Del. July 15, 2020).

He continued the trial after defendants' counsel filed an essentially unopposed request based on rising COVID-19 rates, the importance of live testimony, and the fact that plaintiff is an NPE.

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D. Del. Extends Jury Trial Ban Through August 31

Andrew E. Russell, July 17, 2020
COVID-19

The District Court today extended its ban on jury trials through August 31.

Chief Judge Stark had previously scheduled at least one jury trial for early August, but then rescheduled it after plaintiff raised fairness questions and pointed out the continued rise in the number of COVID-19 cases.

The Delaware state courts are likewise still in Phase Two of their reopening plan (no jury trials). Yesterday Law360 also reported that the Court of Chancery pushed this months' Tesla/SolarCity 10-day bench trial out to 2021 due to Coronavirus safety concerns.

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No One Wants to Fly to Delaware in a Pandemic

Nathan R. Hoeschen, July 16, 2020
Jumara Transfer

Plane in turbulence
Turbulence, Joshua Hoehne, Unsplash

Judge Andrews recently dropped this intriguing paragraph modifying the balancing of the Jumara transfer factors in light of COVID-19:

Currently, the COVID-19 pandemic is ongoing. Hopefully, things will get better, but the pandemic has highlighted that there can be risks associated with travel. Some people who would not have been worried about travel before the pandemic are now reluctant to travel. I believe it is appropriate to give slightly greater weight to the possibility of less risk associated with less travel, which would favor the [transfer] venue.

The opinion is otherwise a bog-standard grant of transfer where both parties were incorporated in Delaware but had no other real connection. It's quite rare to see any …

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D. Del. Jury Trials Are Not Back After All

Andrew E. Russell, July 14, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Last week we wrote that jury trials are back, based on Judge Stark's detailed memorandum order scheduling an August 3rd jury trial in Sunoco.

Yesterday, Judge Stark ended up delaying that trial after all.

Plaintiff had filed a letter setting forth some interesting reasons why the Court cannot conduct a fair jury trial:

  • Video-conferenced witness testimony risks unfair results
  • The jury pool is affected by Coronavirus' disparate impact (e.g. to minorities and the elderly)
  • Plaintiff's Texas-based attorneys would have to quarantine; Defendants Delaware-based attorneys would not
  • Plaintiff's witnesses live in Philadelphia, and cannot travel to Delaware for in-person witness prep without having to quarantine

They also noted that Coronavirus cases …

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Jury Trials Are Back (Sort of)

Jeff Castellano, July 7, 2020
Jury Trials COVID-19

Just before the July 4 holiday, Chief Judge Stark provided some much-anticipated guidance regarding the reinstatement of jury trials in the District of Delaware after the current moratorium expires on July 31, 2020.

In a July 2, 2020 order in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS-CJB, Judge Stark told the parties that he had spent "countless hours" meeting with experts and stakeholders about restarting jury trials in his capacity as Chief Judge, and that the Court was "undertaking extensive efforts to be ready to resume jury trials in August, if it is possible to do so safely." With that background, he outlined the details of how the jury trial in the Sunoco case will proceed on August 3, 2020.

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