A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: jury-trials

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. ...

COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Today the Court issued a standing order formally cancelling the remaining jury trials scheduled until April 5, 2021. As we noted in our last update, the District of Delaware had already canceled all jury trials through the end of February.

Today's order leaves open the possibility of a jury trial under some circumstances:

discretion . . . remains with each presiding judge to order a jury trial in the event of an emergency or other truly urgent situation . . . .

It's hard to envision, however, what circumstances might lead to an emergency jury trial.

Of course, as the order notes, all other proceedings, including bench trials, have been proceeding smoothly …

Adam Tinworth, Unsplash

It has been a while since we posted an update on upcoming jury trials in the District of Delaware.

The most recent news from the Court is that Chief Judge Stark still believes that jury trials are feasible, using the Court's enhanced jury trial procedures, and the Court intends to proceed with trials as they come up.

[UPDATE: If you arrived here via a Google search, make sure to check out our latest posts on this issue here.]

The next jury trial is set for January 25, and then there are multiple trials scheduled for mid- to late-February:

  • January 25, 2021: Judge Noreika has a jury trial scheduled in a breach of contract action, …

Dollar Bills
Sharon McCutcheon, Unsplash

Chief Judge Stark today released his opinion on post-trial motions in Roch Diagnostics Co. v. Meso Scale Diagnostics, LLC, C.A. No. 17-189-LPS (D. Del.), following a jury trial last year that resulted in a $137m verdict and a finding of willfulness.

Damages Award on 65% Royalty Theory Confirmed

The Court denied a post-trial motion to undo the jury's damage finding, which equated to an approximately 65% royalty rate (or more, depending on the royalty base).

Interestingly, the jury awarded damages after a one-sided royalty rate presentation by Roche, the accused infringer. The Court had previously excluded the patentee's damages expert's opinion as to the royalty rate, because it used the wrong date …

Billy, Unsplash

On Monday morning, Chief Judge Stark is scheduled to hold the second District of Delaware jury trial since all jury proceedings were put on hold for the pandemic. The case is USA v. Aaron Davis, C.A No. 19-101-LPS, a criminal fraud and money laundering action filed August 2019.

The Court issued an order Friday making clear that the jury trial will go forward as planned:

ORAL ORDER: IT IS HEREBY ORDERED that the parties shall be present in Courtroom 6B at 9:00 AM on Monday, November 16, 2020. Ordered by Judge Leonard P. Stark on 11/13/2020. (etg) (Entered: 11/13/2020)

The Court has not yet posted public access information.

UPDATE 11-18-2020: This trial was continued shortly after …

Adam Tinworth, Unsplash

Here is a list of some of the upcoming jury/bench trials in the District of Delaware.

As you can see, aside from Thanksgiving, Christmas, and New Years', there is one jury trial per week starting 11/16 and continuing into next year.

  • November 3: Judge Noreika has a remote bench trial scheduled in W. R. Berkley Corporation v. Niemela, C.A. No. 17-32-MN (D. Del.), a non-compete case.
  • November 16: Chief Judge Stark has a criminal jury trial scheduled in U.S. v. Aaron Davis, C.A. No. 19-101-LPS (D. Del.), a fraud case. The Court issued an order last week finding that seven witnesses could testify remotely, and making some statements …

Chief Judge Stark on Friday scheduled the first post-COVID-19 patent jury trial that I've seen, in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB, D.I. 487 (D. Del. Oct. 16, 2020). (The potential Judge Noreika trial I mentioned recently is not going forward).

The Court had offered the November 30 date late last month. The defendant objected to it due to a conflict. The defendant also argued that the jury pool will not be representative, lacking older jurors, and that holding a trial would go against CDC guidance.

The Court was not persuaded. It did, however, set the following restrictions:

  • No live witnesses: The Court accepted a proposal that since not all witnesses can …

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …

Artist's Rendering of Delaware Courtroom in September
Artist's Rendering of Delaware Courtroom in September Jean Wimmerlin, Unsplash

Judge Andrews recently postponed another patent jury trial that had been scheduled for September 21, 2020.

The ruling in Baxalta Incorporated v. Bayer Healthcare LLC, C.A. No. 17-1316-RGA, D.I. 529 (D. Del. Aug 12, 2020) followed the submission of a joint status report where the plaintiffs suggested the case should go forward, citing prejudice to them if the case remains unresolved for the foreseeable future.

The defendant responded by pointing to the obvious difficulties of holding a trial when "no witness resides in Delaware" and lead counsel and their "entourages" are from out of state.

Judge Andrews notably stated that he believed it would be possible …

Just before the July 4 holiday, Chief Judge Stark provided some much-anticipated guidance regarding the reinstatement of jury trials in the District of Delaware after the current moratorium expires on July 31, 2020.

In a July 2, 2020 order in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS-CJB, Judge Stark told the parties that he had spent "countless hours" meeting with experts and stakeholders about restarting jury trials in his capacity as Chief Judge, and that the Court was "undertaking extensive efforts to be ready to resume jury trials in August, if it is possible to do so safely." With that background, he outlined the details of how the jury trial in the Sunoco case will proceed on August 3, 2020.