Sherwin-Williams Patent Trial Delayed Due To Pandemic

By Adam Lidgett
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Law360 (January 6, 2021, 4:50 PM EST) -- A Pennsylvania federal judge on Wednesday indefinitely postponed a February jury trial in a patent suit by Sherwin-Williams against coatings giant PPG, one day after PPG moved for a delay due to the COVID-19 pandemic.

In a brief order, Judge Joy Flowers Conti of the Western District of Pennsylvania granted the motion and continued the trial, which had been set to begin Feb. 22 in Sherwin's suit claiming PPG infringed patents for latex coatings that line the insides of beverage and food cans

The judge scheduled a telephone conference for Feb. 23 to discuss the status of the case.

In its motion seeking a delay on Tuesday, PPG argued that the COVID-19 pandemic is getting worse, and that mitigation efforts in Pennsylvania would make it difficult to have a trial at the currently set date. Not only are many possible witnesses in the case located outside of Pennsylvania, but many attorneys in the case are located outside of the commonwealth as well, according to PPG.

"In view of the foregoing, and to conserve the resources of the parties, the court, the prospective jurors, and the witnesses scheduled to appear, PPG respectfully requests that the court continue the trial in this matter until jury trials can resume with safe and equitable procedures," PPG said.

As of Wednesday afternoon, more than 359,000 people in the U.S. have died from COVID-19, according to data from Johns Hopkins University.

The case was launched against PPG, which also supplies paints and coatings, in 2016. The suit is over allegations that PPG infringed five Sherwin patents covering a food or beverage can coating that substantially lacks any bisphenol A, or BPA.

PPG has stipulated to infringement in the case, but has also argued that the asserted patents aren't valid, according to a special master in the case.

The trial has been scheduled to be split into two phases — one concerning whether the asserted patents are valid and another concerning whether infringement was willful and what any damages should be, according to court documents.

PPG declined to comment Wednesday, citing ongoing litigation.

Counsel for Sherwin declined to comment beyond the company's position in PPG's Tuesday filing.

The patents-in-suit are U.S. Patent Nos. 8,617,663; 8,835,012; 9,242,763; 9,415,900; and 9,862,854.

Sherwin is represented by Gerald Schirato Jr. of Duane Morris LLP and Garret Leach, Megan New, Adam Kaufmann and Brian Verbus of Kirkland & Ellis LLP.

PPG is represented by Celine Crowson, Joseph Raffetto and Corey Leggett of Hogan Lovells and Andrew Fletcher of Blank Rome LLP.

The case is Sherwin-Williams Co. v. PPG Industries Inc., case number 2:17-cv-01023, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Ryan Davis and Cara Salvatore. Editing by Daniel King.

Update: The article has been updated to reflect the court's Wednesday order in the case.

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