A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: covid-19

As jury trials re-start in this District and elsewhere, litigants may wonder whether and how to help the jury understand the impact of the pandemic on the court and, more specifically, the proceedings they are about to witness. In at least one case in this District, competing jury instructions touching on those topics were proposed by the parties just prior to the start of a jury trial last month. In that case—In re Chanbond, LLC Patent Litigation, C.A. 15-842-RGA—the parties took slightly different approaches, although they seemed to agree that the jury should be instructed not to read anything into the precautionary measures taken by the Court and the parties. ...

Why go to the beach when you can have a Delaware jury trial instead!
Why go to the beach when you can have a Delaware jury trial instead! Elizeu Dias, Unsplash

I was planning to lay off of these kinds of posts a bit since the Court has mostly resumed jury trials, but I've heard that people miss them already (and they also tend to be our most-viewed posts). So here is another update!

Since our last update, the District of Delaware has held two jury trials, including a (partial) patent jury trial:

  • 5/20/2021: In Re Chanbond, LLC Patent Litigation, C.A. 15-842-RGA (D. Del.): This patent action ultimately settled after the first three days of the jury trial.
  • 6/7/2021: Clark v. Coupe, C.A. No. 17-66-RGA ( …

Hopefully we can all stop seeing this image soon!
Hopefully we can all stop seeing this image soon! CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Today the Court announced that it is proceeding to Phase 3 of the Court's reopening plan. According to the order, this means:

  • Simultaneous jury trials (!)
  • Reduction to 3 feet of social distancing
  • Masking required in all common areas
  • Masking in the courtroom is up to the individual judges

According to the Court's re-opening plan, this may also include a return to full staffing of the Clerk's Office (I'm not certain that hasn't already happened).

As set forth in the order, Phase 3 will start on June 7, 2021 which I believe is the start of the next scheduled jury trial.

The …

Summer Green Wheat
Artem Kniaz, Unsplash

It's been about two weeks since we last talked about the upcoming trial schedule. In that update, we noted that D. Del. jury trials are truly back, with at least one criminal jury trial having already concluded.

First Post-COVID Patent Jury Trial Next Week?

It looks like In Re Chanbond, LLC Patent Litigation, C.A. 15-842-RGA (D. Del.) is still on track to be the first post-COVID-19 patent jury trial. It is set to start on Thursday 5/20 before Judge Andrews, and from all appearances it will go forward.

To my knowledge, the Court's COVID-19 protocols are still in effect; as such, only one jury trial may proceed at a time …

Judge Fallon today rejected a motion to stay in Minerva Surgical, Inc. v. Hologic, Inc., C.A. No. 18-217-JFB-SRF (D. Del.), where the defendants tried to rely on COVID-19 opinions as precedent to support a further stay of the August 2021 jury trial.

Not stopping
Jorgen Hendriksen, Unsplash

Defendants tried to argue that the current trial date is tentative and COVID-19 uncertainty supports a further stay:

Although discovery is complete, the trial date is merely tentative and “subject to courtroom availability and the priority of other trials previously scheduled ahead of it.” . . . Moreover, as the Court observed in American Axle, “the ongoing impact of the coronavirus pandemic would render it imprudent to set a trial date at this time.” 2021 WL 616992, at *2; Brit. Telecomms. PLC v. IAC/InterActiveCorp, C.A. No. 18-366-WCB, 2020 WL 5517283, at *5 (D. Del. Sept. 11, 2020) (“[I]n light of the COVID-19 pandemic, it seems highly unlikely that the present schedule will hold. . . . And once trials resume, the district court will be faced with the challenge of dealing with the backlog of civil cases that has built up . . . .”); Order at 3, Pact XPP Schweiz AG v. Intel Corp., C.A. No. 19-1006-JDW, D.I. 277 (D. Del. Nov. 5, 2020) (Ex. 1) (“The Court is also mindful of challenges it and the Parties face due to Covid-19 and corresponding restrictions. If this case were to proceed on its current schedule, the trial would likely be subject to significant delays.”).

Magistrate Judge Fallon rejected this argument outright:

Pursuant to the court's April 5, 2021 Notice, the suspension of civil jury trials has expired ...

Gavel
Gavel, Bill Oxford, Unsplash

Last week, we asked whether jury trials in Delaware had finally arrived. After a long period of fits and starts, the answer is yes!

Judge Andrews successfully held a jury trial in a criminal case this week, culminating in a "not guilty" verdict today. Everything seems to have gone off without a hitch, with jury selection, preliminary instructions, opening statements, and multiple witness examinations taking place in a single day.

There's a huge backlog of jury trials in D. Del., and the court is still only equipped to hold one jury trial at a time (with a separate courtroom serving as the public observation area). But this is a big step …

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Since our last update, one of the jury trials set for May has been postponed indefinitely (Johnson-Krumm v. City of Seaford), and it appears from the public docket that trial never went forward in JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC.

But there is light at the end of the tunnel, as two cases in front of Judge Andrews appear to be headed for jury trials in the next month.

The first, USA v. Blue, is set to begin on Monday morning. As we've written before, the court is currently equipped to hold only one jury trial at a time, and Judge Andrews has designated …

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.

COVID-19
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 …

April
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 ...