A Blog About Intellectual Property Litigation and the District of Delaware

Local business closed during the coronavirus covid-19 quarantine, Anastasiia Chepinska, Unsplash

Like the rest of the nation, Delaware is presently descending into an apocalyptic vortex of pestilence and despair. As we've chronicled in numerous posts, this is having no small effect on the business of conducting trials. Thankfully, however, a few orders out this week suggest that there's still some hope that trials scheduled in the very near time might yet go forward.

The first of these was in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB. This case had been set to be Judge Stark's first post-pandemic patent jury trial before being mysteriously continued earlier this month.

Today, however, the Court issued an oral order confirming that the continuation was not Covid-related, but was instead the result of an unresolved spoliation motion. Indeed, Judge Stark stressed in the order that, despite the parties qualms about going forward he "continue[d] to believe this trial can be conducted safely and fairly." Id. at D.I. 513 pg. 4.

The second case was Adverio Pharma GmbH v. MSN Laboratories Private Ltd., C.A. No. 18-73-LPS, which is currently scheduled for a remote bench trial on December 14 (also before Judge Stark). The plaintiff there had sent a letter requesting that the trial date be moved, due to anticipated difficulties with getting its—mostly German—witnesses to testify remotely. See id. at D.I. 188.

Judge Stark declined to reschedule on Wednesday, stating in an oral Order that "[t]he Court intends to proceed, as scheduled, in December, with as much of the remote bench trial as possible, possibly to include the entirety of that trial. On the submissions to date, the Court is not persuaded by Plaintiffs that its fact witnesses are unavailable to testify live (remotely) or that, if they are unavailable, that admission of their deposition testimony is not a fair substitute." Id. at D.I. 191.

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