A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: covid-19

I heard today from one of the magistrate judges (with permission to pass along) that, going forward, the District of Delaware is permitting in-court mediations again, at the discretion of each individual magistrate judge and on a case-by-case basis. The expectation is that the judges will limit the number of people attending the mediations, and that virtual proceedings will remain an option. It is also expected that the change may primarily benefit local cases, as patent cases often involve attorneys or client representatives traveling to Delaware from locations that may still have travel restrictions.

CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Today, the District of Delaware formally lifted its jury trial ban:

The Standing Order RE: Criminal and Civil Jury Trial Suspension issued February 5, 2021[,] expires today, April 5, 2021. Based on current conditions and after consultation with the Court’s Reopening Committee, the Court has decided that it will not, at this time, extend the order. Whether and when any particular case will proceed to trial is left to the discretion of each individual judge of the Court.

There is a jury trial scheduled for today in JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.), although it's not clear yet from the …

Charles Deluvio, Unsplash

No further news on April jury trials since our last update. The following two jury trials still appear to be set, with the first to start on Monday of next week:

  • 4/5/2021: JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.): The parties in this contract action just filed a letter indicating that they have made efforts at settlement, at Judge Noreika's request, but this case is still set to go forward as of now. The Court held the pretrial conference today.
  • 4/26/2021: USA v. Tyshaun Blue, C.A. No. 20-63-RGA (D. Del.): No change; this case appears to be set to go later next month.

To my knowledge, if it goes forward next week, JHL will be the first post-pandemic jury trial in the District of Delaware ...

Peterson Wildlife Refuge in Wilmington, <a href='#' class='abbreviation' data-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Peterson Wildlife Refuge in Wilmington, DE Andrew E. Russell, CC BY 2.0

The Delaware Supreme Court recently announced their expectation that they can safely return to jury trials in June, noting the recent decline in COVID-19 cases. They also announced that the 2021 bar examination for will be administered remotely.

The District of Delaware, however, is still set to restart jury trials on April 5. But there have been a few changes to D. Del.'s April jury trial calendar since our last update:

Trials Set to Proceed

  • 4/5/2021: JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.) (contract …

Estée Janssens, Unsplash

As we previously mentioned, the Court has suspended all non-emergency jury trials until April 5, 2021, and has stated that, at least initially, it will permit only one jury trial to proceed at a time.

The Court tried repeatedly to re-start jury trials in November and continuing through early February—and got so far as jury selection—but ultimately all of the cases scheduled for trial either resolved or were delayed, mostly due to coronavirus concerns among the parties. At this point, the Court has recognized that, once jury trials restart, the trial calendar is looking extremely congested.

The Court Has Not Canceled All April Jury Trials (Yet)

Currently, there are two …

CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Chief Judge Stark spoke at a virtual FBA event in Delaware today, and gave an update on the Court's COVID-19 plans going forward. Here are the main points:

  • The Court intends to remain in Phase 2 of its reopening plan, which is the phase it has been in since September. The Court will keep trying to hold jury trials as scheduled trials come up.
  • No jury trials are scheduled for the remainder of December, but he understands that there are still trials set for January. Chief Judge Stark mentioned that he did not know the exact status of those cases. (Note that at least one judge has doubted that …

In light of the ongoing delays in restarting patent jury trials, and the rising COVID-19 numbers nationwide, it's no surprise to see Judge Andrews recognize that parties may be better served by having a bench trial in the near future rather than waiting an indeterminate time for a jury to be available:

ORAL ORDER: The court doubts that a jury trial will be feasible on Feb. 1. On the other hand, a bench trial would be very feasible. The parties are requested to discuss with each other whether they would mutually agree to a bench trial on Feb. 1, and, if they both do agree, report that fact to the court by no later than Dec. 9. If one …

Phone Booth
Phone booth in London city centre, Katarzyna Pracuch, Unsplash

Sometimes it's better to be heard than seen. Although most of the D. Del. judges have been holding hearings by video since March, Judge Connolly has consistently held his hearings and conferences by telephone.

Yesterday, the parties in one of his cases filed a joint request to hold a Markman hearing by video instead of by phone. They explained their rationale (to "allow for more effective and efficient presentations" and help direct the court's "attention to exhibits and demonstratives"), and offered to handle all of the logistics.

The court was not interested. Judge Connolly issued a one-sentence oral order the same day, saying only that "the Markman hearing will be held by telephone."

What's the takeaway? It's been almost nine months since the court issued its first COVID-related standing order, and the judges have had plenty of time to hone their procedures. It might not hurt to ask, but don't expect them to change what's been working.

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 …

According to the docket, USA v. Davis proceeded to jury selection on Monday, but the trial was then continued:

Minute Entry for proceedings held before Judge Leonard P. Stark - Jury Selection as to Aaron Davis held on 11/16/2020 (Court Reporter B. Gaffigan.) (etg) (Entered: 11/17/2020)
ORDER: IT IS HEREBY ORDERED that the Jury Trial is CONTINUED. The government shall file a joint status report due by 11/30/2020. A Telephone Conference is set for 12/1/2020 at 01:45 PM before Judge Leonard P. Stark. Time is excluded from 11/17/2020 until 12/1/2020. Signed by Judge Leonard P. Stark on 11/17/2020. (etg) (Entered: 11/17/2020)

The order states only that the trial was continued "for the reasons stated in court November 16, 2020," …