IP Forecast: Cox Case To Restart Patent Jury Trials In Del.

By Andrew Karpan
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Law360 (May 13, 2021, 7:35 PM EDT) -- Cox Communications is getting ready to defend its high-speed networking technology from a patent-holding company's infringement claims in the first patent trial in Delaware federal court to go before a jury since the pandemic began — plus all the other major intellectual property matters that are on deck for the coming week.

On May 20, U.S. District Judge Richard G. Andrews is scheduled to ask prospective jurors if "concerns about COVID-19" will make it difficult for them to concentrate on ChanBond LLC's case alleging that Cox's internet connections infringe a collection of patents that cover a method of using bonded transmission channels to improve how data is transmitted.

Last month, Delaware federal court officially lifted the latest order suspending federal civil and criminal jury trials, though jury trials have yet to resume in state courts. Chief U.S. District Judge Leonard P. Stark is set to oversee his first jury trial since the pandemic began next month — a gasoline patent fight between Sunoco and Magellan Midstream. Judge Stark had planned to hold "an experiment" in that case last July that involved jurors attending in person and witnesses testifying remotely, but he later scrapped those plans following objections from Sunoco.

Delaware federal court is nowhere near the first to begin putting patent cases before juries amid the ongoing pandemic this year. U.S. District Judge Alan D. Albright in Texas started holding in-person jury trials in patent cases back in February. There, a jury delivered one of the largest patent infringement wins in history to the patent-holding company VLSI Technology LLC against Intel.

Judges in other Texas federal courts, and elsewhere, have slowly followed suit. Cox, however, had put up stiff opposition over next week's trial date, which was set in October.

"COVID-19 infection levels, cases, and death rate remain substantially higher now than when this trial was last postponed," Cox argued in March. Judge Andrews turned down the argument last month.

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

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.

On Appeal

The Second Circuit on Thursday will hear hedge fund performance coach Denise Shull's appeal of a ruling that threw out her copyright case against the makers of CBS' "Billions." In 2019, U.S. District Judge George B. Daniels ruled that "the idea of an in-house counseling session conducted by an in-house hedge fund performance coach … is not novel" and dismissed Shull's case, which alleged one of the show's characters, played by actress Maggie Siff, ripped off a book she wrote. On appeal, Shull plans to argue that Judge Daniels' conclusion was improperly informed by a "quick internet search" into the subject, not evidence properly presented in the case.

In the Courts

Judge Andrews in Delaware is scheduled on Monday to hear a three-day bench trial between AstraZeneca AB and Zydus Pharmaceuticals USA Inc., the New Jersey arm of India's Cadila Healthcare Ltd. AstraZeneca sued in 2018 after Zydus announced its intention to secure an abbreviated new drug application for a generic version of the AstraZeneca diabetes drug Farxiga, which was approved by the U.S. Food and Drug Administration in 2014.

Judge Albright, whose patent docket in Texas now consists of 19.5% of all new patent cases, has another patent jury trial scheduled to begin Monday. This case pits NCR Corp., an Atlanta-based ATM manufacturer, against CloudofChange LLC, a Pennsylvania company that filed suit in late 2019. CloudofChange's two founders claim to have invented a web-based point of sale system and allege that a point of sale system NCR sells infringes two of their patents.

At the Boards

The Patent Trial and Appeal Board has two days booked next week to consider inter partes review petitions lodged by Intel against a series of patents owned by Swiss-based PACT XPP Schweiz AG. The company claims that a line of multi-core processors Intel launched in 2011 infringed patents its German founder registered with the patent office after he "embarked on the design of a completely different type of a multi-core computer architecture," according to a parallel infringement suit it lodged against Intel in Delaware federal court.

The Trademark Trial and Appeal Board is also scheduled to hear furniture maker Herman Miller Inc.'s appeal of an examining attorney's finding in 2018 that the design of one of its popular Eames office chairs is too functional for trademark protection. The finding came two years after Herman Miller won an $8.4 million jury verdict on trade dress infringement claims against a rival in California federal court. That verdict, trimmed to $3.4 million, was later upheld by a Ninth Circuit panel that split closely on the issue of the design's functionality. The examining attorney, however, explicitly rejected that ruling as establishing any precedent in Herman Miller's efforts to secure trademark protection from the office, according to the filings.

--Additional reporting by Rose Krebs, Dani Kass, Khorri Atkinson, Sarah Jarvis, Britain Eakin and Cara Salvatore. Editing by Breda Lund.

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

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Case Information

Case Title

ChanBond, LLC v. Atlantic Broadband Group, LLC, et al.


Case Number

1:15-cv-00842

Court

Delaware

Nature of Suit

Patent

Judge

Richard G. Andrews

Date Filed

September 21, 2015


Case Title

AstraZeneca AB v. Zydus Pharmaceuticals (USA) Inc.


Case Number

1:18-cv-00664

Court

Delaware

Nature of Suit

Patent - Abbreviated New Drug Application(ANDA)

Judge

Richard G. Andrews

Date Filed

May 01, 2018


Case Title

CloudofChange, LLC v. NCR Corporation


Case Number

6:19-cv-00513

Court

Texas Western

Nature of Suit

Patent

Judge

Alan D Albright

Date Filed

August 30, 2019


Case Title

Shull v. Sorkin


Case Number

20-3529

Court

Appellate - 2nd Circuit

Nature of Suit

3820 PROPERTY RIGHTS-Copyright

Date Filed

October 09, 2020

PTAB Case Information

Case Title

Intel Corporation v. PACT XPP SCHWEIZ AG


Case Number

IPR2020-00518

Date Filed

February 07, 2020


Case Title

Intel Corporation v. PACT XPP SCHWEIZ AG


Case Number

IPR2020-00525

Date Filed

February 07, 2020


Case Title

Intel Corporation v. PACT XPP SCHWEIZ AG


Case Number

IPR2020-00528

Date Filed

February 07, 2020


Case Title

Intel Corporation v. PACT XPP SCHWEIZ AG


Case Number

IPR2020-00531

Date Filed

February 07, 2020


Case Title

Intel Corporation v. PACT XPP SCHWEIZ AG


Case Number

IPR2020-00535

Date Filed

February 07, 2020

TTAB Case Information

Case Title

Herman Miller Inc


Case Number

88027008

Date Filed

May 20, 2020

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