Apple Says August IP Trial Would Bring 'Extraordinary' Risk

By Cara Salvatore
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Law360 (July 15, 2020, 7:05 PM EDT) -- Apple wants to postpone its trial against PanOptis over 4G LTE technology patents from the current August date, asking Texas federal Judge Rodney Gilstrap on Tuesday to grant a two-month delay for "one of the most serious threats to public health and safety that the nation has ever experienced."

The company is gearing up for trial against Optis Wireless Technology LLC, which says Apple is infringing a group of patents that are essential to the 4G LTE wireless standard.

Holding the trial as scheduled would endanger "all involved in the trial — as well as the local communities in and around the Marshall Division and the communities to which all participants would be returning after trial," Apple said. Judge Gilstrap on Wednesday ordered PanOptis to file a response by Friday at 5 p.m.

Georgia Tech's COVID-19 Event Risk Assessment Planning Tool shows "greater than a 90% likelihood of at least one person having COVID-19 in a group of 100 people gathered in Harrison County," the county where the trial will take place, Apple said. That's about the number that will be present when a jury pool shows up to voir dire with a courtroom full of out-of-town lawyers and corporate representatives, the company said.

Apple cited a growing consensus that aerosols, or clouds of micro-droplets, can hang in indoor air for hours after they are produced through speaking or forceful breathing. Medical reports have shown that people are catching the virus after it is circulated through central air conditioning, or from fellow bus passengers who were more than 15 feet away, Apple said.

The year-old complaint in the suit alleges that Apple is infringing the patents by offering 4G LTE capability on the iPhone, iPad and Apple Watch. PanOptis said it tried to get Apple to take a license, but that Apple didn't get on board.

The patent owner has been in a similar fight with Huawei involving at least one of the same patents. That case ended in a post-trial settlement on Feb. 27 following a $13.2 million judgment in PanOptis' favor.

Apple has a trial scheduled in another suit in the Eastern District of Texas, this one in Tyler, in a case brought by VirnetX.

That trial is set for Aug. 17, and so far Apple has not asked for it to be delayed, though it did ask for the pretrial conference to be conducted via teleconference.

The patents-in-suit are U.S. Patent Nos. 8,005,154; 8,019,332; 8,385,284; 8,411,557; 9,001,774; 8,102,833; and 8,989,290.

PanOptis is represented by Samuel Baxter, Jennifer Truelove and Steven Pollinger of McKool Smith PC, Jason Sheasby and Hong Zhong of Irell & Manella LLP and Jill Bindler of Gray Reed & McGraw LLP.

Apple is represented by Mark Selwyn, Mindy Sooter, Timothy Syrett and Brittany Blueitt Amadi of WilmerHale and Melissa Smith of Gillam & Smith LLP.

The case is Optis Wireless Technology LLC et al. v. Apple Inc., case number 2:19-cv-00066, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Ryan Davis, Dani Kass and Tiffany Hu. Editing by Steven Edelstone.

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