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):
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.
As anticipated, Intel has filed another petition for writ of mandamus challenging Judge Albright’s Dec. 31 Order re-transferring the case from Austin back to Waco (see previous post about the first petition HERE). Intel specifically asked the Federal Circuit to “reverse (rather than vacate) the latest retransfer order”, a reference to the Circuit Court’s Dec. 23 Order granting mandamus and vacating the first retransfer order (see previous post HERE summarizing the limitations of the opinion).
Intel’s first argument has been presented a multitude of times in its earlier briefing in both the district court and Federal Circuit: that the facts underlying the initial decision to transfer the case from Waco to Austin in 2019 remain unchanged today. While the pandemic was undoubtedly unforeseeable, Intel argues that it did not frustrate the original purpose for transfer to Austin and thus, the case cannot be transferred back to Waco on that basis.
Intel’s second argument centers on the district court’s 1404(a) analysis. This issue was not directly addressed by the Federal Circuit in the last mandamus proceeding because the district court did not base its original retransfer order (the subject of the first mandamus proceeding) on a renewed analysis of the 1404(a) convenience factors. Intel argues that the analysis in the most recent order applied the wrong legal standard and improperly shifted the burden to Intel.
The district court’s decision to reset the trial date for next month gives the parties enough time to take the issue up with the Federal Circuit, but we can still expect another round of shortened briefing schedules and quick opinions to issue from the Federal Circuit. We will keep you posted.
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!
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.