Albright Says COVID-19 Delay Is OK In HEB Patent Trial

By Andrew Karpan
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Law360 (January 14, 2021, 5:48 PM EST) -- U.S. District Judge Alan Albright in Texas signed off on an effort to postpone an in-person jury trial that was set to start in six weeks in a patent fight over scan and pay technology between the grocery store chain HEB and startup Digital Retail Apps.

A week after HEB Grocery Co. LP and Digital Retail Apps Inc. asked Judge Albright to push the Feb. 19 trial date to April 19, the busiest patent judge in America agreed to their stipulation without comment.

Digital Retail Apps is behind an app called SelfPay, which is marketed as a go-between for customers and point of sale systems that are used by retailers. In 2019, Digital Retail Apps filed suit, alleging that a vice president at the Texas-based HEB spotted a demonstration of SelfPay's technology at a retail technology conference and requested a demonstration of its features to build a competing product.

After volleying dismissal motions and counterclaims, a jury trial was initially scheduled for Jan. 11, before being later pushed to February.

"The worsening COVID-19 pandemic has raised significant concerns for both parties' attorneys, witnesses, and experts regarding the risks posed to anyone who attends in-person trial," the companies said in a Jan. 8 filing.

Confirmed cases of COVID-19 have been spiking in the state since October, when the daily number of new cases was closer to 5,000 a day, according to the Texas Department of State Health Services. On Wednesday, the department reported approximately 22,300 new cases. Nearly 30,000 people in the state have died.

But Judge Albright has been divided on the issue of postponing jury trials in his busy patent court. A jury trial between Intel and VLSI Technology LLC, which is owned by investment funds with assets managed by Fortress Investment Group LLC, is still scheduled for Feb. 16 in Waco.

Unlike Digital Retail Apps, VLSI is less interested in waiting for the pandemic to end before calling up a jury to deliberate on its computer chip patents. On Tuesday, VLSI told a Federal Circuit panel that Judge Albright's decision to transfer the case out of a courthouse that remained shuttered because of the pandemic was "eminently sensible."

Judge Albright, a former Bracewell LLP patent attorney who took the bench in 2018, has actively promoted his court as a venue for patent cases, and plaintiffs have responded: nearly 700 patent suits had been filed in the district between January 2020 and October 2020, more than any other court.

While his federal courthouse in Austin remains closed, a courthouse in nearby Waco reopened months ago, and Judge Albright has held at least one patent jury trial there since September.

When a lawyer for Intel argued last month that cases of COVID-19 were spiking in Waco, Judge Albright retorted that he was getting better information about the local spread from his wife, who works at a Waco hospital's intensive care unit.

Representatives for the parties did not respond to requests for comment Thursday.

The patents in-suit are U.S. Patent Nos. 9,262,781 and 9,934,506.

Digital Retail Apps is represented by Todd P. Blakely, Robert R. Brunelli, Matthew C. Holohan and Tara K. Hawkes of Sheridan Ross PC.

HEB is represented by Joseph P. Reid, Thomas N. Millikan, Skyler M. Howton and Andrew N. Klein of Perkins Coie LLP.

The case is Digital Retail Apps Inc. v. H-E-B LP, case number 6:19-cv-00167, in the U.S. District Court for the Western District of Texas.

--Additional reporting by Ryan Davis and Dave Simpson. Editing by Orlando Lorenzo.

Correction: An earlier version of this story incorrectly described the relationship between VLSI and Fortress. The error has been fixed.

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