By Dorothy Atkins

Law360 (October 16, 2020, 6:17 PM EDT) -- Rival biotechnology equipment makers have asked U.S. District Judge William Alsup to push back a "patent showdown" claim construction hearing set for December, after a 78-year-old expert validity witness developed COVID-19 symptoms.

In a Thursday stipulation, Fluidigm Corp. and rival Ionpath Inc. urged the judge to delay the scheduled showdown procedure, in which each side offers one claim to illustrate whether he should toss the case, by four weeks.

They explained that Fluidigm's sole expert validity witness, Gary Hieftje, who was going to be deposed next week, has fallen sick and developed symptoms like a high fever and loss of smell and taste, which are indicative of the coronavirus.

"While Fluidigm is cognizant that the court rarely, if ever, grants extensions of time for its showdown proceedings, Fluidigm respectfully submits that good cause exists in this case," the motion says. "The additional time will allow Dr. Hieftje to recover from his illness, including, if necessary, the receipt of in-patient treatments should his symptoms worsen in the coming weeks as is often consistent with the course of COVID-19 in symptomatic patients."

The request to push back the hearing is the latest chapter in a lawsuit the South San Francisco-based Fluidigm and its Canadian subsidiary filed against Ionpath in September 2019, alleging the Silicon Valley-based company willfully infringed its patents and intentionally interfered with its contracts.

Fluidigm, which makes biological research equipment based on integrated fluidic circuit technology, claims its consultants formed the rival company while under contract with Fluidigm. Ionpath then allegedly began using Fluidigm's proprietary antibodies and reagents, along with its patented methodologies, to test Ionpath's "mass cytometry system," the suit claims. Fluidigm also alleges Ionpath tried to convince Fluidigm's customers to break their contracts.

Fluidigm's suit asks the court to block Ionpath from using its technology and seeks punitive and treble damages and reasonable royalties for Ionpath's alleged infringement of three of its patents, plus interest, costs and attorney fees.

In November 2019, the parties asked Judge Alsup to push back their case management hearing multiple times. The judge agreed, but said in a Nov. 22 order that "there will be no further continuances whatsoever."

In January, Judge Alsup tossed Fluidigm's contract claims from the case, along with induced infringement, contributory infringement, and enhanced damages for willfulness claims, but the company amended its complaint a few months later.

In the spring, Judge Alsup vacated all hearings due to the pandemic, but set a claim construction "showdown" hearing for Oct. 22 and a jury trial for June 2021. Since then, the judge has pushed back the claim construction hearing multiple times, with the latest order setting it for Dec. 17.

But on Thursday, the companies asked Judge Alsup to delay the hearing again, this time by about a month, due to the witness' health status. They said delaying Hieftje's deposition will ensure he's in good health when he is deposed and will present a "more complete and fair record for court to consider in the showdown."

Counsel and representatives for the parties didn't immediately respond Friday to requests for comment.

The patents-in-suit are U.S. Patent Nos. 10,180,386; 10,072,104 and 10,436,698.

Fluidgm is represented by K. Lee Marshall, Abigail Cotton, David A. Roodman, Nick E. Williamson and Jason S. Meyer of Bryan Cave Leighton Paisner LLP.

Ionpath is represented by Sonal N. Mehta, Omar A. Khan, Joseph Taylor Gooch and Joshua D. Furman of WilmerHale.

The case is Fluidigm Corp. et al. v. Ionpath Inc., case number 3:19-cv-05639, in the U.S. District Court for the Northern District of California.

--Editing by Marygrace Murphy.

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