By Cara Salvatore

Law360 (July 6, 2020, 10:09 PM EDT) -- Delaware's chief federal judge said Monday that he's still planning for an early August trial between Sunoco and Magellan Midstream over gasoline patents, though it will proceed as "an experiment" with jurors attending in person and witnesses testifying remotely.

Sunoco Partners Marketing & Terminals LLC brought the infringement suit against Magellan Midstream Partners LP over a group of patents for blending butane into gasoline.

Chief U.S. District Judge Leonard Stark ruled that, as things stand right now, delaying further because of the pandemic was not preferable — though that could still change, he said.

Judge Stark has decided to hold the trial in a courtroom. Jurors will come in person, as will the two fuel companies' lawyers and corporate representatives, though the latter groups will be extremely limited in their numbers. Meanwhile, the witnesses will appear by a live video link.

Though "far from ideal, I believe that skilled trial counsel — using advanced videoconferencing technology — can conduct effective examinations even without being in the same room as the witness, opposing counsel, the jury, and the judge," the judge said, calling it "something of an experiment."

The judge will allow the plaintiffs to choose four people to appear in court from their pool of lawyers, jury consultants and company representatives, and one of those people must be local Delaware counsel. The defendants, of which there are two, are restricted to three people each from the same pool, the judge said.

Members of the public who are interested in watching will also need to go to the courthouse in person, the judge said. They will be placed in a different courtroom.

Furthermore, he asked the parties to "take all necessary steps to eliminate paper exhibits."

But he also said he might still delay the trial again and is closely monitoring as the coronavirus situation changes. The nation has seen a massive spike in cases over the past two-plus weeks. Judge Stark noted that he was not speaking as the chief judge of the district, but instead only as "the presiding judge in this specific case," and the order related only to protocols for this trial, not general protocols for the district.

In late March, the Patent Trial and Appeal Board invalidated claims in two of the Sunoco patents, finding U.S. Patents Nos. 9,606,548 and 9,494,948 invalid as anticipated.

Sunoco told the federal court afterward that the PTAB decisions "have no legal effect on this court, this trial, or validity until appeals are exhausted." Sunoco indicated that it plans to appeal and "expects to reverse" the PTAB decisions.

The panel has construed a key term in the case — "gasoline" — and said there was support for Magellan's proposed claim construction in the patent specification, noting, "The '948 patent uses the term 'gasoline' in its broader sense to include component gasoline streams within a refinery."

Magellan wanted the board to construe it as any petroleum-based liquid. That definition could encompass components like butane that are part of a refinery's recipe for gas-station gasoline. Magellan argued that under its construction, the challenged claims were invalid.

Sunoco indicated it would likely argue on appeal that the board's construction was wrong. Sunoco has argued that "gasoline" includes only finished EPA-regulated gasoline fuel.

Sunoco sued in 2017, alleging Magellan willfully infringed five related gasoline-blending patents.

Sunoco has asserted four of the same patents in a separate case against U.S. Venture Inc. and unit U.S. Oil Co. Inc. in Illinois federal court. After a bench trial, the judge ruled in January that U.S. Venture had infringed, awarding Sunoco $6 million in damages — though the company had originally sought $32 million.

Representatives for the parties were not immediately available for comment.

The patents-in-suit are U.S. Patent Nos. 9,494,948 and 9,606,548.

Sunoco Partners is represented by John Keville and Michelle Replogle of Winston & Strawn LLP.

Magellan and Powder Stream Logistics are represented by Martina Hufnal and Dorothy Whelan of Fish & Richardson PC and David Moreland of Meunier Carlin & Curfman LLC.

The case is Sunoco Partners v. Powder Springs et al., case number 1:17-cv-01390, in the U.S. District Court for the District of Delaware.

--Additional reporting by Britain Eakin and Dani Kass. Editing by Steven Edelstone.

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