Patent Voir Dire During COVID

Now that the next Waco patent jury trial is less than two weeks away (see previous post HERE), it’s time to discuss Judge Albright’s proposed procedure for the upcoming jury selection. When we were invited to the courthouse to see a demonstration of the new technology (see previous post HERE), Judge Albright discussed his current plans for voir dire to ensure that all health and safety precautions are taken, noting that he is open to input from the parties as well.

Although the courtroom would allow for 42 prospective jurors in the courtroom at once, the number will be limited to approximately 15-20 at a time in order to ensure proper social distancing. The gallery has 7 rows and there will be one juror per row on each side of the gallery (14 total). There will likely be about 3 chairs spaced in the center aisle for jurors as well, and 4-5 jurors spread out in the jury box. Below is a comparison of the current proposed layout for the upcoming voir dire versus typical voir dire procedure (with 42 jurors):

Proposed Current Voir Dire Configuration
Typical Voir Dire Configuration

Judge Manske will be presiding over voir dire. He will conduct the initial questioning of the panel, who will be limited to physical responses (i.e. hand raise or standing up) instead of verbal responses. When Judge Manske finishes his questioning, the parties will begin their questioning. One by one, each prospective juror will sit in the witness box for individual questioning from each side. Since the witness box is enclosed within plexiglass, the jurors can safely remove their masks so their faces are visible during questioning.

The remaining members of the panel will be socially distanced in an overflow room. As voir dire is conducted in the courtroom, it will be streamed into the overflow room for the rest of the panel. The panel members in the overflow room will not be answering the questions, but they will be able to hear what is being asked of the members in the courtroom. The overflow room is equipped with microphones so that if it is necessary to ask questions of anyone in the overflow room, they can respond directly. The final jury will consist of 7 members.

Waco In-Person Patent Jury Trial Postponed After Parties’ Joint Request

Pursuant to the parties’ joint stipulation and request, Judge Albright has agreed to postpone a February in-person jury trial in a Waco patent case. On January 8, the parties in Digital Retail Apps, Inc. V. H-E-B, LP filed a joint stipulation asking the Court to postpone the February 19 jury trial in light of the COVID-19 pandemic.

The case was originally filed in the Waco Division in February 2019 and set for trial January 11, 2021. In August 2020, trial and jury selection was reset for February 19, 2021. Last week, the parties explained to the Court that the “worsening COVID-19 pandemic has raised significant concerns for both Parties’ attorneys, witnesses, and experts regarding the risks posed to anyone who attends in-person trial.” They requested the Court “postpone the trial date from February 19 to an available date in April in order to allow the COVID-19 situation to ameliorate.” On Wednesday, Judge Albright signed their agreed order postponing the trial.

Groundhog Day: Venue Mandamus on Repeat?

On December 23, the Federal Circuit appeared to give Intel an early Christmas present by granting Intel’s Petition for Writ of Mandamus, vacating the previously set trial date of January 11, 2020 in Waco (see our previous post HERE regarding Intel’s petition and the November 20 transfer back to the Waco Division).  However, the Circuit Court was very deliberate in its limited holding and, more importantly, explicit in what it was not holding, overtly stating “we do not hold that the district court lacks the ability to effectuate holding trial in the Waco Division.”

The Federal Circuit then essentially handed the parties and the district court a road map for its next steps, declaring: “We only hold that it must effectuate such result under appropriate statutory authority, such as moving the entire action to the Waco Division after concluding, based on the traditional factors bearing on a § 1404(a) analysis, that ‘unanticipated post-transfer events frustrated the original purpose for transfer’ of the case from Waco to Austin originally. In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983). Such analysis should take into account the reasons of convenience that caused the earlier transfer to the Austin division.”  The Circuit Court concluded that it takes “no position on whether such finding can be made here.”

To absolutely no one’s surprise, VLSI immediately (read: later that very same day) filed an emergency motion to transfer venue from Austin to Waco for convenience, conducting the 1404(a) analysis laid out by the Federal Circuit.  Intel’s victory was short-lived as it then spent the holiday responding to VLSI’s Motion in preparation for a December 30 hearing.

During the hearing, Judge Albright indicated that he would grant the Motion. However, he also stated that he would set the trial for mid-February, instead of January 11, in order to give Intel time to seek relief from the Federal Circuit yet again.  On December 31, Judge Albright issued his written opinion and order granting VLSI’s Motion and transferring the case back to the Waco Division. Taking heed of the Federal Circuit’s directive, he went factor by factor and even included a chart comparing the weight of each 1404(a) factor at the time of the original transfer to Austin compared to the weight right now.

We can expect another Petition for Writ of Mandamus to be filed by Intel shortly. It seems the Federal Circuit will then have to bring some clarity as to the affect that the COVID-19 pandemic has on the traditional convenience factors and how it affects the overall transfer analysis.  We will keep you updated!

WDTX 11th Supplemental Order on Court Operations During COVID

Yesterday marks the entry of the 11th supplemental order from Chief Judge Garcia regarding Court operations in WDTX during the pandemic. The evolution of the Court’s orders regarding COVID can all be accessed HERE.

The 11th Order is substantially similar to last month’s order and essentially extends the status quo through January 31, 2021. As a general rule, all jury trials scheduled to begin through January 31, 2021 are continued. Bench trials may proceed if they can be conducted with appropriate safety precautions.

The Order also affirms divisional discretion to proceed with jury trials. If the judges in a specific division within the Western District determine that jury trials may be safely conducted, then the most senior district judge within the division may enter an order resuming jury trials based on the unique circumstances within that division.

Judge Albright has previously exercised this discretion and entered two Divisional Standing Orders (August Order and September Order) finding that jury trials could be safely conducted in the Waco Division. Since September he has held three jury trials. His fourth jury trial, and second patent jury trial, is currently scheduled for January 11, 2021.

Judge Albright Confirms His First Patent Jury Trial Will Proceed

Judge Albright has again confirmed that his first patent jury trial since taking the bench will proceed on October 5. In his latest Divisional Standing Order he reiterated that the Waco Division has “undertaken great efforts to ensure trials can be conducted safely” and is “confident, as things stand today, it can conduct fair trials in a safe manner.”

The final pretrial conference for MV3 Partners LLC v. Roku, Inc. took place this week, with jury selection set for October 1 and trial October 5.

This Standing Order was entered in accordance with the WDTX Eighth Supplemental Order on Court Operations During COVID, entered earlier this week, which continued all jury trials currently set through October 31. However, this latest district-wide order maintained the spirit of its previous order, giving the individual divisions within the district the discretion to proceed with jury trials if the division determined the trials can be conducted safely. Judge Albright exercised his discretion to proceed with jury trials, ensuring appropriate health and safety precautions will be undertaken.

This parallels the series of events in August when the WDTX Seventh Supplemental Order on Court Operations During COVID was entered, continuing all trials through September 30, yet giving each division discretion to proceed (see previous post HERE). In accordance with that Order, Judge Albright entered his first Divisional Standing Order determining that the Waco Division would take appropriate precautions to allow jury trials to proceed safely starting September 1 (see previous post HERE).

Waco Jury Trials Set to Resume

On October 5, Judge Albright is set to preside over his first patent jury trial since taking the bench.  MV3 Partners LLC v. Roku, Inc. is not only set to be Judge Albright’s first patent jury trial, but also the first jury trial in the Waco Division since the COVID-19 pandemic essentially halted all jury trials. The trial was supposed to occur in early summer but was continued multiple times due to the pandemic.

Judge Albright has exercised his discretion per the WDTX Seventh Supplemental Order (see previous post HERE) to resume jury trials in the Waco Division.  In his Divisional Standing Order he notes a “meaningful decline” in new reported COVID-19 cases in the Waco Division, and finds that this Division may safety conduct trials.    

Trial in the time of COVID will look a little different with additional precautions including:

  • Limiting the number of people in the courtroom;
  • Providing masks to jurors;
  • Providing hand sanitizer;
  • Installing plexiglass shields; and
  • Requiring face masks for all persons except:
    • a witness while testifying; and
    • an attorney while examining a witness or making a statement to the jury

The Order bars people who meet specific criteria from entering the Courthouse including persons who have recently traveled to certain areas with large COVID numbers, persons who have been diagnosed with COVID, persons who are self-quarantining per medical directive, persons exhibiting COVID symptoms, and persons who reside with or are in close contact with someone who fits in one of these categories.

WDTX 7th Supplemental Order on Court Operations During COVID

As part of the ongoing COVID-19 pandemic, we are now on the seventh supplemental order from Chief Judge Garcia regarding Court operations in WDTX during this strange time. The evolution of the Court’s orders regarding COVID can all be accessed HERE.

Here are the highlights from the latest Order:

Trials Continued Through September 30, 2020:

All trials, both civil and criminal, bench and jury, currently set through September 30, 2020 are continued.

Discretion to Proceed With Jury Trials:

WDTX encompasses 68 different counties and the Court recognizes that the public health considerations may be very different between Divisions.  Thus, the judges in each division are permitted to evaluate the facts and circumstances of that division to determine whether jury trials can safely proceed.  If the judges determine jury trials can be safely conducted, the most senior judge in the division may enter an order resuming jury trials.