A Blog About Intellectual Property Litigation and the District of Delaware


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 fighting the coronavirus outbreak, characterizing cancer, keeping food safer ... the CDC ... used nanopore sequencing to understand the first cases of coronavirus in the U.S .... Only Oxford sequencers like this could be rapidly assembled and distributed to China and the many labs sequencing samples around the country, and now these minIONs are in the hands of scientists and public health officials in China who are on the ground in realtime, monitoring the spread of the virus and working desperately to control it.

Plaintiff objected during defendant's opening. Judge Stark gave defendant's counsel a warning at sidebar, and later issued curative instructions. After a mixed verdict, plaintiff moved for a new trial based in part on defendant's discussion of coronavirus in its opening statement.

The Court Denied the Motion for a New Trial

The Court denied the motion last week, because the curative instructions sought by plaintiff—given exactly as requested—cured any prejudice, and because the jury's lengthy deliberations and questions, and the mixed verdict, showed that it "did not [act] impassionately."

Still, it's hard to imagine a party daring to go into a trial today and claiming its product could help create a vaccine or otherwise resolve the coronavirus crisis. If ever there were something that could cause a juror to be "inflamed by passion" these days, that's it.

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