In A First, Game Controller Patent Case Kicks Off On Zoom

By Ryan Davis
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Law360, New York (January 25, 2021, 10:14 PM EST) -- The first-ever patent jury trial to be conducted remotely due to the coronavirus pandemic got off to a smooth start Monday, as both sides in a case against Valve Corp. over video game controllers questioned 27 potential jurors over Zoom about their gaming habits.

The jurors appeared via webcam from their homes around the Seattle area before Judge Thomas Zilly of the Western District of Washington, while attorneys for Valve and plaintiff Ironburg Inventions Ltd. appeared remotely from places including San Francisco, Houston, and Kansas City, Mo.

The participants could see each other, but only an audio feed was available to the public. Judge Zilly told the jurors that the trial was being held remotely because "we all want to be safe from the virus," but that he expected the trial would proceed the same way it would if everyone was sitting in the courtroom and would be "a very educational and worthwhile experience."

"The court has decided not to ask jurors, witnesses and even judges to come to the courthouse because of the pandemic, but rather to keep our courtroom doors open using the Zoom platform," he said.

State courts around the country have held jury trials over Zoom during the pandemic, but the Western District of Washington pioneered remote jury trials in federal civil cases with an injury trial in October before Judge Zilly. Other judges in the district have since held several more Zoom trials, but Monday's was the first in the nation in a patent case.

Since the case involves Ironburg's allegation that the Steam Controller sold by Valve, maker of hit games like Half-Life and Portal, willfully infringes a controller patent, much of the day was spent questioning the jurors about their familiarity with Valve and its products, their affinity for gaming and their connections to Microsoft, which has licensed Ironburg's patents.

Apart from a few brief lost connections and muted microphones, the process went off without a hitch. Several of the jurors had some ties to Washington-based Microsoft, and many said they were either devoted or casual gamers. A few had strong opinions in the other direction, either disliking video games or being completely unfamiliar with them.

Ironburg used one of its challenges to dismiss a man who said he owns four of the Steam Controllers at issue and spends several hours a day playing games, including those made by Valve.

Both sides agreed to excuse one woman after she said her husband plays video games up to 12 hours a day, but that she never does, is "absolutely against" ever letting her daughter play and didn't know if she could be impartial in a case about video games.

The parties eventually selected eight jurors, including a retired Microsoft software engineer who said he is the named inventor on over 10 of the company's patents and worked on hundreds of others, a grocery store manager whose children are gamers, and a sanitation worker who laughed when asked if he ever plays video games.

Judge Zilly said opening arguments would be held on Tuesday and explained some of the logistics of a remote trial, which is expected to last between five and seven days. He said sometimes jurors would be placed in a separate Zoom room when the parties need to speak privately with him or their clients, but promised that would happen rarely.

He told jurors to avoid any disruptions by watching the trial in a room by themselves, turning off their phone, and not doing anything else while the trial is in session, including other work on the computer or chatting with anyone.

"There may be times, frankly, in this remote world that we live in where one or more people will lose connectivity, we'll have to sort through that, so please be patient with us," the judge said.

That happened once during jury selection, where one potential juror couldn't be heard by anyone else and had to call in on the phone to talk.

Judge Zilly also promised to give jurors time to meet and talk to each other in a Zoom breakout room at various points during the trial, in order to recreate the way jurors can get acquainted in the jury room during recesses at the court. That step was informed by the court's earlier remote trials, he said.

Jurors in those trials "didn't have that opportunity and didn't really know each other at all," the judge said. "So they went into deliberations and all of a sudden they had to establish some rapport with each other before they could really substantively talk about the case. So we hope there will be an opportunity for you folks to visit."

In another unusual aspect of a remote trial, each of the jurors will be sent one of the controllers at issue via overnight delivery, so they can have them in their hands during witness testimony.

After the jurors signed out of the Zoom meeting for the day, Judge Zilly told the lawyers that "I thought that went about as smooth as it can go," even though it took a little longer than it would have in person.

"If there are things that you think we can improve on, let us know. It's a work in progress, and we're all learning," he said. "I think once we get to the witnesses, I think you'll find it goes quite smoothly. I hope it does."

The patent at issue is U.S. Patent No. 8,641,525.

Ironburg is represented by Robert Becker, Christopher Wanger and Alexandra Hill of Manatt Phelps & Phillips LLP and Stephen Willey of Savitt Bruce & Willey LLP.

Valve is represented by Patrick A. Lujin, B. Trent Webb, Mark D. Schafer, Tanya Chaney and Lydia C. Raw of Shook Hardy & Bacon LLP, Gavin Skok of Fox Rothschild LLP and Reynaldo C. Barcelo, Joshua Harrison and Guadalupe Garcia of Barcelo Harrison & Walker LLP.

The case is Ironburg Inventions Ltd. v. Valve Corp., case number 2:17-cv-01182, in the U.S. District Court for the Western District of Washington.

--Editing by Emily Kokoll.

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