By Lauren Berg

Law360 (October 14, 2020, 5:26 PM EDT) -- A Delaware federal judge on Tuesday set a patent infringement trial against Cox Communications Inc. for May 2021, after agreeing this summer to postpone the proceeding because of risks posed by the COVID-19 pandemic.

U.S. District Judge Richard Andrews' one-page order included no information beyond setting a new trial date of May 17. At the trial, Cox will be defending itself from allegations that it infringed ChanBond LLC's high-speed networking patents.

Counsel for the parties did not immediately respond to requests for comment Wednesday.

The new trial date comes after Judge Andrews in July agreed to postpone the proceeding at Cox's request. The company had asked for a November trial, saying that by then "the current health crisis will hopefully be under control."

This case was to be the first of 13 related infringement suits filed by ChanBond to go to trial, but Cox's request letter said "a trial conducted under the present circumstances will not provide a bellwether."

"Presenting all witnesses by video, and limiting the number of counsel who can appear live, might substantially impact the trial presentation," Cox said. "Many courts acknowledge that remote testimony impairs a factfinder's ability to judge credibility."

ChanBond responded that it was amenable to delaying the trial, but also that it "comes as no surprise to ChanBond, as Cox and the other defendants have sought to delay trial in these matters since these cases were filed."

In addition to Cox, ChanBond has sued companies including Charter Communications Inc., Time Warner Cable Inc. and Comcast Corp. alleging infringement of the patents in question. The cases were filed in 2015.

Judge Andrews' decision to move the trial to next year comes as judges around the country also continue to delay proceedings to minimize the risk of exposure to the virus.

A West Virginia federal judge last week postponed an eagerly awaited bellwether trial in multidistrict opioid litigation after three drug distributors — McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. — cited fears that in-person court proceedings might trigger "a super-spreader event."

Last month, a Pennsylvania federal judge pushed back a patent infringement jury trial involving Cutsforth Inc. until May 2021, citing the pandemic, while a Massachusetts federal judge in August delayed the start of the first group of parents facing trial in the "Varsity Blues" case.

Two patent judges in Texas who are holding trials have diverged on protocols during the pandemic.

For U.S. District Judge Rodney Gilstrap, who presides over the Marshall, Texas, courthouse in the Eastern District, seeing trial participants' faces is so important that he orders empaneled jurors and attorneys sitting at counsel tables to wear only face shields rather than masks.

U.S. District Judge Alan D. Albright of the Western District's Waco division gives jurors the option of wearing masks or shields, and attorneys at counsel tables in his courtroom can choose whether they wear any face coverings at all.

The patents-in-suit are U.S. Patent Nos. 7,941,822, 8,341,679 and 8,984,565.

ChanBond is represented by Robert A. Whitman, Mark S. Raskin, John F. Petrsoric, Michael DeVincenzo and Andrea Pacelli of King & Wood Mallesons, Stephen B. Brauerman of Bayard Pal and George T. Shipley of Shipley Snell Montgomery LLP.

Cox is represented by Jennifer Ying and Jack B. Blumenfeld of Morris Nichols Arsht & Tunnell LLP and Michael L. Brody, Saranya Raghavan, Krishnan Padmanabhan, David P. Enzminger, Nimalka Wickramasekera and James C. Lin of Winston & Strawn LLP.

The case is ChanBond LLC v. Atlantic Broadband Group LLC et al., case number 1:15-cv-00842, in the U.S. District Court for the District of Delaware.

--Additional reporting by Dani Kass, Craig Clough, Katie Buehler, Jeff Overley and Tiffany Hu. Editing by Peter Rozovsky.

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