VirnetX Calls Apple's Bid To Delay IP Retrial 'Fearmongering'

By Britain Eakin
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Law360 (August 3, 2020, 11:13 PM EDT) -- An attorney for VirnetX told a Texas federal judge Monday that Apple's request to push back a $700 million in-person jury retrial over damages because of the COVID-19 pandemic is an attempt to delay the resolution of a decade-old patent infringement case and gain a tactical advantage.

Bradley W. Caldwell of Caldwell Cassady & Curry PC said Apple is trying to create precedent that will inevitably lead to further requests for more delays in the absence of any evidence that the pandemic will be better three months down the road.

"VirnetX's perspective is enough is enough," Caldwell said during a daylong remote pretrial conference.

Without denying the seriousness of the pandemic, Caldwell suggested Apple's motion is "a lot of fearmongering" and said the precautions the court is implementing will be sufficient to proceed with the trial in the absence of a perfect solution that ensures 100% safety.

VirnetX's 2010 suit accused Apple of infringing four of its network security patents, with a jury finding in April 2018 that Apple infringed all of them, but the Federal Circuit threw out the damages award in November after finding that Apple had only infringed two of the patents.

Apple's motion, which was unsealed July 29, asked the court to postpone the trial's Aug. 17 start date for 90 days, citing spiking cases in Smith County, Texas, where the court is located, and a Georgia Institute of Technology risk assessment tool showing there is a 98% chance one person involved in the trial will have the coronavirus.

Apple's attorney, Michael E. Jones of Potter Minton PC, urged U.S. District Judge Robert W. Schroeder III to put the trial off, in part to see how a separate infringement trial in the same district in which Apple is also a defendant shakes out, and whether the protocols put in place prove sufficient to keep the legal teams, court staff and jurors healthy.

"The question is whether these precautions will work," Jones said.

Apple had asked for a delay in that case as well, but U.S. Judge Rodney Gilstrap declined the request, noting the various safety measures he has imposed in his courtroom, including daily sanitation of the facilities, face shields, temperature checks and restricting the number of attorneys seated at counsel tables.

Judge Schroeder said Monday he will implement many of the same precautions. In addition, jurors will be spaced out and seated on the jury box side of the courtroom rather than in the jury box itself. Witnesses will testify from the jury box and counsel tables will be moved apart. The judge said the courtrooms will be deep-cleaned each night, and the witness stand will be sanitized after each witness.

Everyone who enters the courtroom will have their temperature taken before entering the courthouse and will have to answer questions about recent travel, symptoms and contact with people who have had symptoms or tested positive, the judge added. He said social distancing will be enforced, gloves and hand sanitizer will be provided, and masks will be required during the trial.

Witnesses, however, will not be required to wear masks when testifying, and attorneys will be allowed to remove their masks when questioning witnesses.

Apple expressed doubt in its motion that cleaning would do enough to prevent transmission "from respiratory droplets caused by coughing, sneezing, or — critically for a trial — talking, or by droplets that become fine particles suspended in the air."

Jones noted as well on Monday that temperature checks don't catch presymptomatic or asymptomatic cases.

Apple also contends it will be prejudiced by moving ahead as scheduled because two key witnesses won't be able to appear in person. Judge Schroeder proposed having all witnesses appear remotely, but both attorneys said they would need to consult their clients before committing to that.

Judge Schroeder said he would issue a ruling on Apple's motion soon, with the attorneys informing the judge that members of their teams will begin descending on Tyler, Texas, where the courthouse is located, starting on Aug. 5 to begin preparing for the currently scheduled trial.

The patents-in-suit are U.S. Patent Nos. 6,502,135 and 7,490,151.

VirnetX is represented by Bradley W. Caldwell, Jason D. Cassady, John Austin Curry, Daniel R. Pearson, Hamad M. Hamad, Justin T. Nemunaitis, Chris S. Stewart, John F. Summers and Warren J. McCarty III of Caldwell Cassady & Curry PC, Robert M. Parker, R. Christopher Bunt and Charles Ainsworth of Parker Bunt & Ainsworth PC, and T. John Ward Jr. of Ward Smith & Hill PLLC.

Apple is represented by Gregory S. Arovas, Robert A. Appleby, Jeanne M. Heffernan, Joseph A. Loy and Leslie M. Schmidt of Kirkland & Ellis LLP, and Michael E. Jones of Potter Minton PC.

The case is VirnetX Inc. et al. v. Apple Inc., case number 6:12-cv-00855, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Ryan Davis and Tiffany Hu. Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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