Infernal Technology, LLC et al v. Take-Two Interactive Software, Inc.
- Filed: 10/09/2019
- Case Updated Daily
- Latest Docket Entry: 05/05/2021
November 25, 2020
The COVID-19 pandemic has forced courts to rethink many aspects of the patent litigation process. While a number of district judges have moved hearings and other procedures online, the nation’s top patent venues effectively suspended jury trials through most of the summer—until District Judge Rodney Gilstrap of the Eastern District of Texas resumed patent trials in August after local infection rates began to fall. However, as the pandemic moves further into its second wave, Judge Gilstrap has now taken the notable step of halting all jury trials before him after a coronavirus outbreak during a trial under another judge in the Eastern District. Judge Gilstrap stated that he was doing so “reluctantly” but asserted that he had no alternative—arguing that the face-to-face aspect of in-person trials is essential for due process.
Judge Gilstrap held the August patent trial mentioned above, the nation’s first since the start of the pandemic, in litigation between several subsidiaries of PanOptis Holdings, LLC and Apple (2:19-cv-00066), following the expiration of the last district-wide jury trial continuance on May 31. The trial went forward after a debate over whether it could be conducted safely, with Apple arguing that the trial should be pushed back due to the risk posed by the pandemic to the parties and surrounding community—citing data showing uncontrolled community spread and the high risk of at least one attendee’s infection with the novel coronavirus. Yet Judge Gilstrap—who had recently made general public comments that local conditions did not favor further restrictions at that time—denied Apple’s motion, rejecting the company’s arguments that public health concerns outweighed the rights of the parties to resolve their dispute. While he acknowledged the “conundrum of first impression” that he faced in making this determination, Judge Gilstrap argued that ultimately, “the best way out is always through” (quoting the poet Robert Frost). Judge Gilstrap has subsequently stated, in his November 20 order, that the trial had been conducted “safely and with no known incident”.
By November, though, the COVID-19 pandemic had taken a dark turn, with dramatically spiking infection rates and hospitalizations leading some states to reimpose public health restrictions that had been loosened in the preceding months. The pandemic’s second wave then spilled into the courtroom: on November 9, on the sixth day of trial in a breach of contract suit between ResMan and Kayra Property Management, Judge Mazzant halted the trial after a juror tested positive. The number of confirmed infections then swelled to 15 people, according to the court clerk, including multiple jurors, members of the plaintiff’s and the defendant’s legal team, and court staff—despite the imposition of certain safety measures taken to prevent the spread of coronavirus, including daily temperature checks, the installation of physical barriers in the courtroom, and social distancing requirements. On November 17, Judge Mazzant declared a mistrial in that case.
Meanwhile, the coronavirus also began to affect litigation before Judge Gilstrap. On the same day as the aforementioned breach of contract mistrial, the parties in a patent case—plaintiffs Infernal Technology, LLC and Terminal Reality Inc., and defendant Sony (2:19-cv-00248)—jointly notified the court that one of the plaintiff’s attorneys had tested positive, and that the attorney had been in physical contact with two other members of the plaintiff’s legal team. Shortly afterward, on November 19, Sony filed an opposed motion to postponethe trial then scheduled for December 4 to March 2021, citing high overall infection rates and “substantial” increases within the Eastern District of Texas in particular. That motion came one day after a motion filed by Samsung in litigation filed by Irish NPE Solas OLED Limited (2:19-cv-00152), requesting the continuation of a trial also scheduled for early December.
On November 20, Judge Gilstrap issued a wider order, affecting all cases before him with trials scheduled from December through February, continuing all in-person jury trials—granting continuances where requested and otherwise doing so sua sponte. Judge Gilstrap’s order cited the growing severity of the pandemic, noting that while he had safely conducted trials as recently as November, “we now face a dangerously rising rate of increase in COVID-19 cases and swelling hospitalizations in this district and across the country”. The order noted that the court had come “to this result reluctantly—especially considering the huge earlier efforts undertaken to resume in-person jury trials”, but stated that continuing jury trials is a necessary step given public health concerns within the Marshall Division and the importance of holding such trials in person.
“While some motion practice may be adequately addressed via virtual proceedings”, continued Judge Gilstrap, “the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person”. Judge Gilstrap emphasized the importance of face-to-face trials, stating that “[j]ury trials are innately human experiences” in which “[m]ore is often communicated in a courtroom non-verbally than verbally”. “This Court is persuaded that the remote, sterile, and disjointed reality of virtual proceedings cannot at present replicate the totality of human experience embodied in and required by our Sixth and Seventh Amendments”.
More broadly, the discretion granted to Texas judges in all but the Northern District of Texas—which has continued jury trials scheduled through December in nearly all cases, with no room for discretion—has resulted in uneven responses, across districts, to rising infection rates. As noted above, the Eastern District gives judges such discretion, though some have also issued sweeping continuances—like Judge Mazzant, who has pushed back all trials scheduled before him in December. The Southern District also allows divisions to approach jury trials differently according to local circumstances. Additionally, on November 18, Western District of Texas Chief Judge Orlando Garcia issued a district-wide order continuing all civil and criminal jury trials set to begin through December 31. However, as in previous orders, he has given judges within the district the discretion to hold jury trials anyway if they determine it can be done safely.
One notable result of this policy is that District Judge Alan D. Albright of the Waco Division—who has seen a surge of patent litigation since his confirmation in late 2018, pushing the Western District to the top of the patent venue rankings earlier this year—has not issued an across-the-board continuance. Rather, a recent ruling in a consolidated case between VLSI Technology LLC and Intel (1:19-cv-00977) suggests that he may adopt more of a wait-and-see approach.
On November 20, Judge Albright issued a ruling on the location of a January trial to be held in one of the joined cases that had been transferred to the Austin Division but remained on his docket. Since the Austin courthouse has been closed indefinitely due to COVID-19, Judge Albright was faced with the choice to either delay the case until that courthouse reopens or hold the trial in Waco and avoid further delays. Judge Albright far and above favored the latter approach, citing in part the need to proactively manage the “backlog of trials” created by the pandemic, as well as the notion that trials should not be delayed because each US patent has an expiration date. (Note, however, that the oldest patent at issue in that case appears to expire in 2027.) While the issue at hand did not require Judge Albright to weigh public health concerns directly, he has placed similar emphasis on efficiency and speedy dispute resolution in other circumstances, including convenience transfers.
For more on the jury trial restrictions recently imposed by other top patent venues, see RPX’s third-quarter review.