Apple Can't Postpone Texas Patent Trial Due To COVID-19

By Dave Simpson
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Law360 (March 15, 2021, 10:35 PM EDT) -- A Texas federal judge declined to postpone next week's jury trial for a suit in which Apple was accused of infringing multiple patents with technologies used in its iOS devices, saying other trials have proceeded safely and that this one will be no different.

U.S. District Judge Robert W. Schroeder III denied Apple's bid to postpone the trial until later in the year so that all its participants can be vaccinated, pointing to recent remarks by fellow Lone Star state U.S. District Judge Rodney Gilstrap, who lauded the court's efforts to follow the Centers for Disease Control and Prevention guidelines as just while ensuring speedy resolutions to disputes.

"The court has been consistently mindful of the safety of the parties, court staff and potential jurors, and will continue to do so in the future," Judge Schroeder said. "And the court is open to accommodating further precautionary requests by the parties, if any."

The court already postponed the trial date to its current date because of the pandemic, and last month Apple moved to stay proceedings in the case pending U.S. Patent and Trademark Office review of the patents at issue, or at least push back the trial date to later in 2021 due to COVID-19.

Schroeder also said on Monday that waiting until everyone is vaccinated "presents a potentially indefinite interruption to the schedule in this case" since "vaccine availability is locality-dependent and relies on multiple factors, including age and medical history."

He offered to allow anyone to participate via videoconference.

Apple additionally argued last month that four of the six patents at issue in the case are already being reviewed by the USPTO, and that the company expects decisions to be made soon as to whether to grant ex parte reexamination requests related to the two other patents.

But Judge Schroeder rejected this argument as well, noting that Apple's attempts to get the patents reviewed came too late.

"Apple waited more than 20 months to begin filing EPR requests on the asserted patents and filed its last request on February 12, 2021 — just over a month before trial is set to begin," he said. "Each of the EPR requests was filed after the two previously scheduled trial settings. Apple provides no explanation for this lengthy delay in requesting EPRs."

Kyoto, Japan-based Maxell sued Apple in March 2019, claiming it infringed 10 patents covering technology ranging from cellphones to batteries to cameras. Last month, however, the court told Maxell that it must narrow its case down to six patents, which the company did, according to court records.

In a separate case, Apple has asked the Federal Circuit for en banc review of a panel decision dismissing five appeals of U.S. Patent Trial and Appeal Board decisions denying inter partes review.

Maxell has opposed that bid at the appellate court, saying the U.S. Supreme Court has properly held that the PTAB's decisions on whether to undertake a patent review are not subject to appellate review. Ruling otherwise, Maxell said, would contravene the America Invents Act by opening "the floodgates to mandatory appellate review of thousands of [U.S. Patent and Trademark Office] institution decisions."

The patents-in-suit are U.S. Patent Nos. 6,329,794; 6,430,498; 6,580,999; 6,748,317; 7,116,438; and 8,339,493.

Maxell is represented by Geoff Culbertson and Kelly Tidwell of Patton Tidwell & Culbertson LLP, and Jamie B. Beaber, Alan M. Grimaldi, Kfir B. Levy, James A. Fussell III, Baldine B. Paul, Tiffany A. Miller, Saqib J. Siddiqui, Bryan C. Nese, William J. Barrow, Alison T. Gelsleichter, Clark S. Bakewell, Robert G. Pluta and Amanda Streff Bonner of Mayer Brown LLP.

Apple is represented by Harry L. Gillam Jr. and Melissa Richards Smith of Gillam & Smith LLP, and Mark D. Fowler, Brent K. Yamashita, Christian Chessman, Sean C. Cunningham, Erin P. Gibson, Kevin Hamilton, David R. Knudson, Michael Jay, Aaron G. Fountain, Zachary Loney, Dawn M. Jenkins, Paul Steadman and Stephanie Lim of DLA Piper.

The case is Maxell Ltd. v. Apple Inc., case number 5:19-cv-00036, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Katie Buehler, Lauren Berg, Ryan Davis, Cara Salvatore, Hailey Konnath, Dani Kass, Britain Eakin and Tiffany Hu. Editing by Ellen Johnson.

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