By Andrew Karpan

Law360 (March 18, 2021, 6:37 PM EDT) -- Cox Communications is looking to push back a May in-person trial against it in Delaware federal court because it contends that it's "highly unlikely" that all participants in the nearly six-year dispute over high-speed networking patents will be vaccinated by then, but the patent-holding company bringing the case is opposing any delay.

In a status report filed Wednesday, Cox Communications Inc. and ChanBond LLC leveled opposing positions on the matter of the consolidated case's May 17 trial date, which was set by U.S. District Judge Richard Andrews last October, a date that was also the result of Cox's efforts to reschedule the case's original trial date of last July.

The case has been simmering in Delaware federal court since 2015, when ChanBond filed a flurry of suits against 12 telecom businesses, including Cox, Atlantic Broadband Group LLC and Comcast Corp., which were consolidated for pretrial purposes in 2017. ChanBond's case against Cox is the first to prospectively come up before a jury.

"ChanBond prefers to go forward with a live, in-person jury trial beginning on May 17," the patent-holding business said Wednesday, adding that it believes the trial can now be conducted safely. "ChanBond understands that the COVID-19 pandemic is not formally over and the safety of jurors, the court and its staff, the witnesses, and all trial participants including counsel is paramount. However, conditions have been improving."

But not improving enough, countered Cox. In fact, by some measures, they are even worse, the cable giant says.

"COVID-19 infection levels, cases, and death rate remain substantially higher now than when this trial was last postponed," Cox argued. The company cited a recent statement from Delaware Chief Justice Collins J. Seitz that announced plans to resume jury trials in June, which Cox said suggested meant that they could not be safely conducted before then.

Amid an ongoing pandemic, Cox added that there was little rush to immediately resolve the case since "as a non-practicing entity that seeks only monetary damages for the asserted patents, ChanBond will suffer no prejudice by an additional short continuance."

In the past, Cox has taken the position that virtual testimony would hurt its case, and on Wednesday, the company pointed to the "significant damages" that ChanBond is seeking in its argument that pandemic-related "factors can have a disproportionate impact on fairness of a trial in the current environment."

If the trial date in its case against Cox is delayed, ChanBond asked Judge Andrews to also schedule its next jury trial, against Comcast, to take place in the fall of this year "to alleviate the harm [of] a second delay of trial."

ChanBond accuses the companies of selling internet connections that infringe patents that ChanBond owns on a method of improving how data is transmitted, namely using multiple, bonded transmission channels, according to the initial complaints.

Cox is also fighting to reopen discovery in order to present new evidence that allegedly shows that ChanBond's attorney "flatly advised his client to conceal documents to gain a litigation advantage." Those documents purportedly showcase an "ongoing struggle over ownership of ChanBond," which Cox says would impact the case, according to Wednesday's status report.

ChanBond called that argument "baseless."

In-person jury trials in patent cases have continued with a curious sputter over the past few months, most notably in Judge Alan Albright's court in the Western District of Texas, which held the first in-person patent trial in the country this year. Last month's trial there led to a $2.2 billion win for another patent-holding company, VLSI Technology LLC, when a jury found that Intel ripped off two of its computer chip patents.

Less dramatically, a federal jury in North Carolina handed a portable solar company more than $10.6 million in damages in a patent case on Monday, following a two-day trial. That case had been initially scheduled for January, but U.S. District Judge Martin Reidinger pushed it to this month, citing the ongoing pandemic.

Representatives for the parties did not respond to a request for comment on Thursday.

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 Lauren Berg, Britain Eakin and Clark Mindock. Editing by Jay Jackson Jr.

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