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Law360 (February 26, 2021, 8:52 PM EST) -- A former Microsoft employee wants U.S. District Judge Alan Albright to send his patent company's infringement case against Samsung Electronics to his courtroom in Waco, Texas, because it's the only place an in-person "trial actually can proceed" during the pandemic.
Ancora Technologies Inc. filed the motion, made available on Friday, requesting that Judge Albright reverse an early 2020 stipulation that consolidated Ancora's infringement cases against Samsung and LG Electronics in the Western District of Texas' Austin division.
Ancora had initially signed off on that stipulation, which had been made at the request of the smartphone manufacturing giants.
"Circumstances have since changed dramatically and unexpectedly," Ancora Technologies said in the filing. "Ancora agreed in good faith to a stipulated transfer to Austin because, at the time, Samsung could credibly contend that Austin was convenient. More than a year later, that is no longer true."
The trial is set to start April 19, but the Western District's Austin courthouse where the case is assigned is closed due to COVID-19 concerns. But a carveout in U.S. District Chief Judge Orlando Garcia's order shutting down the Western District's courthouses allows some to stay open if the highest-ranking local judge thinks it's safe.
Judge Albright, the only federal district-level judge in the state's Waco division, thinks just this. For the past week, a billion-dollar in-person jury trial has been taking place between the patent holding company VLSI Technology LLC and Intel Corp. It's the first and only in-person patent trial that has taken place so far this year.
VLSI Technology's case against Intel had also been initially scheduled in Austin, but Judge Albright — in a fight that was litigated up to the Federal Circuit — allowed the case to be sent to Waco at VLSI's request.
"Waco is a far more convenient forum because, among other reasons, trial actually can proceed in that forum," Ancora Technologies said.
According to the motion, Samsung plans to oppose this effort, as well as Ancora's efforts to have the motion heard on an expedited schedule. Time is of the essence, Ancora told Judge Albright in a footnote: "Ancora will need to book accommodations and other services whose cancellation period begins in March 2021."
Ancora Technologies was formed in 2002 by Miki Mullor, who later worked as a program manager for Microsoft. The company owns a patent that covers cell phone security technology. On his LinkedIn page, Mullor claims that "today, Ancora's seminal patented tech (US Patent [No.] 6,411,941) is in every smart phone."
After Ancora filed suits related to that patent against Apple, Dell Inc., Hewlett Packard Inc., as well as his former employers at Microsoft, Mullor's company turned its guns on the smartphone makers Samsung and LG in 2019.
Particularly, Ancora alleged that Samsung's Galaxy line of smartphones, among others, had infringed its patent, which was issued by the U.S. Patent and Trademark Office in 2002. In the separate suit against LG, Ancora claims that the LG Aristo, among other brands, also infringes the patent. According to the latest scheduling order, which Judge Albright signed earlier this month, jury selection in the case against LG is set to start in June.
Larger smartphone makers than Samsung and LG had attempted to fight the patent before, Ancora had warned in its complaint. The Federal Circuit had tossed a claims construction victory that Apple had initially won against Ancora before a Northern District of California judge in 2014. The companies later settled in 2016.
Representatives for Ancora Technologies and Samsung did not respond to requests for comment.
The patent-in-suit is U.S. Patent No. 6,411,941.
Ancora Technologies Inc. is represented by Charles L. Ainsworth and Robert Christopher Bunt of Parker Bunt & Ainsworth PC and Nicholas S. Crown, Zachary Savage, Steven M. Seigel, Lexie G. White and Andres Healy of Susman Godfrey LLP.
LG Electronics is represented by Natalie A. Bennett, Elizabeth M. Chiaviello, Thomas Davis, Collin W. Park and Winstol D. Carter Jr. of Morgan Lewis & Bockius LLP.
Samsung Electronics is represented by Michael E. Bowlus, Jared Frisch, Robert T. Haslam, Chang Sik Kim, Eric T. O'Brien, Matthew Phelps, Richard L. Rainey, Scott A. Schrader, Anupam Sharma, Sinan Utku and Thomas E. Garten of Covington & Burling LLP and Andrew Thompson Gorham, Melissa Richards Smith and Harry Lee Gillam Jr. of Gillam & Smith LLP.
The case is Ancora Technologies, Inc. v. LG Electronics, Inc. et al., case number 1:20-cv-00034, in the U.S. District Court Western District of Texas.
--Additional reporting by Katie Buehler. Editing by Nicole Bleier.
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