The nation’s top patent venues have adapted to the COVID-19 pandemic in markedly different ways, diverging most dramatically with respect to jury trials. While the Eastern District of Texas recently held the nation’s first patent jury trial since the start of the pandemic under District Judge Rodney Gilstrap, the Northern and Central Districts of California have issued orders suspending all such trials. However, until recently, both the Western District of Texas and the District of Delaware—the first- and second-most popular venues for NPE litigation, respectively—took a middle ground by giving presiding judges the discretion over whether to hold jury trials, effectively on a case-by-case basis. Now, District Judge Alan D. Albright has issued an order stating that the Western District’s Waco Division is ready to move forward with jury trials in patent cases, citing declining infection rates within that division and measures designed “to ensure trials can be conducted safely”.

As noted in a recent RPX analysis, the Western District’s most recent district-wide order addressing COVID-19 continued all civil and criminal bench and jury trials set through September 30 to a date to be determined by the presiding judge. However, the order acknowledged that the various divisions of the Western District are differently situated and gave the most senior district judge in each division the discretion to resume jury trials, should they determine this can be done safely: “If judges in a specific division determine jury trials can be safely conducted, the most senior district judge within the relevant division may enter an order making those findings and resuming jury trials for the division despite this order and with notice to the Chief Judge”. This gave Judge Albright the sole discretion to make this determination, as he is the Waco Division’s only district judge.

Judge Albright entered such an order on August 18, stating that bench and jury trials shall resume in his division as early as September 1. The order notes that within the 13-county Waco Division, both the county in which the court sits (McLennan) and “those from which it pulls jurors have seen a meaningful decline in new reported COVID-19 cases”. In particular, Judge Albright cites data showing that McLennan County, “one of the densest and most populated in the division[,] . . . has seen a 70% drop in rolling 7-day average of daily positives”.

That post-July decline is reflected in the graph below, which shows an analysis of confirmed COVID-19 cases in McLennan County (as derived from an open API based on data compiled by Johns Hopkins University) through August 20. The data also indicate that the seven-day trailing average of new cases remains well above the levels observed when Texas Governor Greg Abbott first imposed health directives in March.

McLennan County: Daily Confirmed COVID-19 Cases and Seven-Day Moving Average

Additionally, Judge Albright cites data on the total number of cases in the Waco Division as a whole compared to other areas of Texas, observing in part that the division accounts for “approximately just 2.3% of all cases” in the entire state. Judge Albright further highlights the fact that “the Waco Division counties collectively have fewer cases than do a single county in Austin (Travis County), San Antonio (Bexar County), and El Paso (El Paso County)”. An analysis of infection rates by population also shows that the Waco Division has a lower cumulative infection rate than those counties: the Waco Division (which has a total population of around 888.2K) has had about 14.6 infections per 1K people, whereas Travis (with a roughly 1.3M population) has had 19.9 infections per 1K people, Bexar (with a 2M population) has had just under 22.3 infections per 1K people, and El Paso (with a 839K population) has had around 22.7 infections per 1K people. However, McLennan County alone (with a 256K population) is closer to the others, with 21.6 infections per 1K people.

An analysis of daily confirmed infections in the 13 counties that make up the Waco Division through August 20, shown below, indicates that new COVID-19 cases are also trending downward, albeit less sharply than McLennan County on its own. Moreover, daily caseloads remain around eight to ten times higher than they were in March.

Waco Division: Daily Confirmed COVID-19 Cases and Seven-Day Moving Average

Note: Includes data from all 13 counties located in the Waco Division (Bell, Bosque, Coryell, Falls, Freestone, Hamilton, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell).

Judge Albright’s order also details the various protective measures that his division plans to implement in order to allow trials to proceed safely: “Among other things, the Court is prepared to mandate appropriate distancing in the courtroom and around the courthouse, limit the number of individuals in the courtroom, provide masks to jurors, supply hand sanitizer, and install plexiglass shields where beneficial and appropriate.” These procedures, explains Judge Albright, are “informed” by “feedback from other judges and lawyers who have conducted in-person trials since the outbreak of the pandemic”.

While the order does not specify the venues from which that feedback originated, the safety procedures outlined by Judge Albright closely resemble those imposed by Judge Gilstrap in preparation for the recent trial in PanOptis v. Apple, which ended on August 11 with a $506.2M infringement verdict. As detailed here, Apple cited those measures as presenting a public health question of first impression in its request to continue a retrial in another case brought by VirnetX Inc. The company argued that presiding District Judge Robert W. Schroeder III should push the VirnetX retrial back in part due to the need to ascertain whether Judge Gilstrap’s safety procedures had been effective in preventing infections among the people present. Judge Schroeder granted a continuance on August 10, agreeing with Apple’s primary arguments that rising infection rates warranted a delay but not citing the defendant’s position on the assessment of safety procedures.

On August 19, the day after clearing the way for jury trials to proceed, Judge Albright set an October 5 trial date in litigation filed by inventor-controlled MV3 Partners LLC against Roku (6:18-cv-00308), after announcing his decision to continue that case (but not specifying a date) on August 10. That continuance was the fourth granted in that case, in which trial had last been scheduled for September 8. In agreeing to another delay, Judge Albright expressed that he was “surprised[,] as he thought everyone was on board with moving forward in September”, but cited Roku’s concerns in continuing the trial.

For additional analysis on pandemic-era jury trials, see “As the COVID-19 Pandemic Rages On, Top Patent Venues Diverge on Jury Trials” (August 2020). Details on the PanOptis v. Apple trial, as well as the VirnetX v. Apple retrial, can be found here.