By Dani Kass

Law360 (August 14, 2020, 5:06 PM EDT) -- In this round of intellectual property updates tied to the ongoing pandemic, patent trials across Texas continued to get pushed back, except in Marshall, where an in-person jury hit Apple with a half-billion-dollar verdict Tuesday.

Texas

U.S. District Judge Rodney Gilstrap has finished overseeing the first in-person trial over patents since the pandemic started closing courts across the country.

On Tuesday, the Eastern District of Texas jury said Apple should pay PanOptis and related companies more than $506 million for willfully infringing patents covering 4G LTE technology. The judge then held a bench trial over whether PanOptis offered Apple a fair, reasonable and nondiscriminatory license on the standard-essential patents.

PanOptis' counsel team talked to Law360 about the safety precautions taken by the Marshall, Texas, court and Judge Gilstrap — who had shot down Apple's attempt to postpone the trial — saying they felt safe during the proceedings.

Across the district in U.S. District Judge Robert Schroeder III's Tyler courtroom, Apple was able to get upcoming litigation postponed. That judge on Aug. 10 granted Apple's motion to delay a damages retrial against VirnetX from Aug. 17 to Oct. 26, noting that "three counties in the Tyler Division rank among the top 30 counties for active COVID-19 cases in Texas."

In the state's Western District, U.S. District Judge Alan D. Albright on Aug. 10 delayed an upcoming trial in Waco where MV3 Partners LLC is accusing Roku of infringing its streaming media patent. The trial has been repeatedly pushed back from its original June 1 date, and is now looking at an October start.

While Judge Albright had granted Roku's request, the docket entry noted that "the court was surprised" by it, "as he thought everyone was on board with moving forward in September."

In Houston, U.S. District Judge Andrew S. Hanen on Wednesday pushed back an upcoming trial between Halliburton Energy Services Inc. and Legacy Separators LLC. The judge said he's going to reschedule the Aug. 24 trial over Legacy's gas separator patent for sometime between October and December, but likely on the latter end of that period. He asked the parties to submit dates to him.

This trial in Texas' Southern District will be looking at infringement questions that left a jury hung at the beginning of the pandemic.

Other Litigation and Courts

On Thursday, the Federal Circuit said its doors will remain closed to the public until at least Sept. 14., "based on continuing declared public health emergencies impacting Washington, D.C., and the national capital region, as well as ongoing efforts to mitigate community transmission and the impact of COVID-19," Circuit Judge Sharon Prost said in an order.

The court added that access will be limited to court staff, but that it will consider other access requests on a case-by-case basis.

The U.S. International Trade Commission is finally ready to hold remote proceedings in patent cases, after putting most cases on hold in March. It took the commission months to select a videoconference system that it felt could keep confidential business information secure, given that this type of information is often central to these cases.

In late July, the commission settled on Cisco's Webex Meetings, and the platform will be used for the first time on Aug. 19 for a claim construction hearing in Universal Electronics' streaming media patent case against Roku, TCL and others. After that, Webex hearings will be held in other cases that have spent months in limbo, which attorneys hope will get the ITC's patent docket back on track before long.

In New York federal court, UMB Bank on Wednesday accused Revlon of unlawfully shifting its collateral trademarks away from a group of creditors that extended nearly $1.8 billion to the cosmetics giant.

The valuable American Crew and Elizabeth Arden brands were among the collateral that was shifted to newer loans in a desperate effort to steer away from a financial storm already gathering before the COVID-19 pandemic, UMB Bank said. 

Outside the Courtroom

U.S. Patent and Trademark Office Chief Financial Officer Jay Hoffman on Thursday said the economic downturn caused by the pandemic has started to reduce demand for the agency's services, but a healthy reserve fund and an upcoming fee hike put the agency in a "very strong financial position." Hoffman told the Patent Public Advisory Committee that patent and trademark fee collections are now expected to be lower than had been projected due to the state of the American economy.

"Since June, we have continued to see a gradual decline in our patent revenues," he said at the meeting, which was conducted by teleconference. "It started in late spring and has continued. It's not a lot: It's probably closer to 2 percent below what was planned, and it's something that we're watching very closely."

Finally, Moderna Inc. — which is in advanced clinical trials for a COVID-19 vaccine — expressed concerns about its potential patent rights. In a U.S. Securities and Exchange Commission filing on Aug. 6, the company said "we cannot be certain that we were the first to make the inventions claimed in our patents or pending patent applications, or that we were the first to file for patent protection of such inventions."

"For this and other reasons, we may be unable to secure desired patent rights, thereby losing exclusivity," the company added.

News website Axios argued Tuesday that the National Institutes of Health could be a joint owner, meaning the public would have a stake in these patent rights.

--Additional reporting by Ryan Davis and Craig Clough. Editing by Bruce Goldman.

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