By Andrew Karpan

Law360 (December 18, 2020, 11:31 PM EST) -- Before rejecting Intel's latest efforts to delay an in-person patent trial set for Jan. 11, Texas federal Judge Alan Albright let a lawyer for Intel know that he was getting better information about the local spread of the COVID-19 pandemic from his wife, who works at a Waco hospital's intensive care unit.

VLSI Technology LLC brought Judge Albright's comments from Wednesday to the attention of the Federal Circuit on Friday, where Intel is arguing that he is trying to rush the case while courthouses around the country are closing their doors to jury trials as the pandemic worsens. Another Texas federal judge, Rodney Gilstrap, has already postponed all jury trials in the state's Eastern District until March.

The patent-holding company claims in its latest complaint, filed under seal, that Intel is infringing its data process patents to the tune of billions of dollars, according to a filing from Intel late last month that had similarly urged Judge Albright to hold off the case until March or April.

But Judge Albright didn't see a reason to wait. After the courthouse in Austin where the case was originally scheduled remained closed, he sent the case to another courthouse in Waco, which he has kept busy since running his first patent jury trial there in October.

Intel is already challenging Judge Albright's decision to move the case at the Federal Circuit, but the tech giant leveled a separate effort this week to get him to pause the case based on COVID-19 conditions in Waco.

"I think everyone should know, my wife is a nurse. She's working right now [at the Ascension Providence hospital] in the ICU," Judge Albright said during a hearing on that bid, held via Zoom on Wednesday, interrupting a presentation being delivered by William Lee, the co-managing partner at WilmerHale who is representing Intel against the patent-holding company's infringement claims.

The transcript of the hearing comes from VLSI, which attached it as an exhibit in its latest response brief in Intel's Federal Circuit fight over that earlier ruling.

Lee had been in the middle of presenting slides attesting that hospitals in McLennan County, where Judge Albright's court in Waco is located, were at nearly 100% ICU capacity. But Judge Albright had his own source on the local ICU situation.

"I have a — probably better than anyone on this phone call — first-hand information about what's going on inside the hospitals — at least her hospital — with respect to what's happening in ICUs," Judge Albright told Lee, before telling him that he could keep going.

Lee had responded that he had first-hand information about the pandemic too, citing his two brothers, three nieces and a nephew, "all of whom have been working in COVID ICU wards in different locations."

Judge Albright then observed that, according to his wife, not all the ICU beds at the Ascension Hospital were even being used by patients with COVID-19. Lee countered that this only made the prospect of holding an in-person jury trial even worse, as the virus is now surging to dangerous levels in McLennan County, and those additional beds will soon be needed.

"The suggestion that we, Intel, or I, Bill Lee, are somehow afraid to try this case is just wrong," Lee had said on Wednesday, but even Judge Albright admitted that it's the Federal Circuit that will likely deliver the final word on the matter.

"I fully understand why Intel's taking this action with the circuit. It doesn't upset me," the judge mused, while reminiscing on his own experiences before the appellate panel as a partner at Bracewell LLP.

"Clarity from the circuit is always good for me. I'm doing the very best I can to do what I think is best, but that's the way our system works," he said.

He then denied the motion.

Representatives for Intel, for VLSI and for Judge Albright's office did not respond to a request for comment on Friday.

The patents-in-suit are U.S. Patent Nos. 7,725,759; 7,523,373; and 8,156,357.

VLSI is represented by J. Mark Mann, G. Blake Thompson and Andy Tindel of Mann Tindel Thompson, Craig D. Cherry of Haley & Olson PC, and Morgan Chu, Benjamin W. Hattenbach, Keith Orso, Christopher Abernethy, Amy E. Proctor, Dominik Slusarczyk, Charlotte J. Wen, Brian Weissenberg, Jordan Nafekh, Michael H. Strub Jr. and Babak Redjaian of Irell & Manella LLP.

Intel is represented by William F. Lee, Louis W. Tompros, Kate Saxton, Gregory H. Lantier and Amanda L. Major of WilmerHale, J. Stephen Ravel of Kelly Hart & Hallman LLP, and James E. Wren of Baylor Law School.

The district court case is VLSI Technology LLC v. Intel Corp., case number 1:19-cv-00977, in the U.S. District Court for the Western District of Texas. The appellate case is In re: Intel Corp., case number 21-105, in the U.S. Court of Appeals for the Federal Circuit.

--Additional reporting by Ryan Davis, Katie Buehler and Lauren Berg. Editing by Adam LoBelia.

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