Both Sides Ask Albright For COVID Delay In HEB Patent Trial

By Dave Simpson
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Law360 (January 8, 2021, 11:36 PM EST) -- Grocery store chain HEB and Digital Retail Apps — which are battling over accusations that HEB infringed patents with an app to scan and pay for items in-store — filed a joint motion Friday asking U.S. District Judge Alan Albright of the Western District of Texas to postpone their jury trial set for February, citing safety concerns given the pandemic.

HEB Grocery Company LP and Digital Retail Apps Inc. asked Judge Albright to push the Feb. 19 trial date back to April 19 in order to allow "the COVID-19 situation to ameliorate."

"The worsening COVID-19 pandemic has raised significant concerns for both parties' attorneys, witnesses, and experts regarding the risks posed to anyone who attends inperson trial," the parties said Friday.

Judge Albright — the busiest patent judge in America — has scheduled several other trials amid the pandemic, including one involving Intel set for Feb. 16 in Waco. 

Intel is appealing to the Federal Circuit after Judge Albright refused to further postpone the trial due to the pandemic, with the judge saying he is too busy and has so many trials scheduled that postponing one will mess everything up.

In December, Judge Albright let a lawyer for Intel know that he was getting better information about the local spread of the COVID-19 pandemic from his wife, who works at a Waco hospital's intensive care unit.

Judge Albright's approach has differed from another Texas federal judge, Rodney Gilstrap, who has postponed all jury trials in the state's Eastern District until March. And Intel has asked for their trial to be kicked back to March or April.

But Judge Albright hasn't seen a reason to wait. The Intel case was originally scheduled to take place in Austin. But when that courthouse remained closed, he sent the case to Waco, which he has kept busy since running his first patent jury trial there in October.

The October trial, at which a jury cleared Roku of infringing an MV3 Partners LLC streaming media patent, was closely watched in the intellectual property world since the Western District of Texas is now the nation's busiest court for patent litigation.

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.

With many more such trials expected in the years to come, the Roku case was the first opportunity to see how jurors in the district evaluate patent cases, and how Judge Albright's experience would inform his handling of trials. Attorneys who traveled to watch the trial or followed it said they found the experience illuminating.

The Roku case was originally slated to go to trial in June but was delayed multiple times due to the coronavirus pandemic. When it finally got underway, observers said they were impressed by Judge Albright's commitment to enforcing virus safety measures in the courthouse.

His efforts included making sure everyone wore a mask throughout the trial, apart from the attorneys speaking and the witnesses, who spoke from behind a set of plexiglass barriers that was nicknamed the "dunk tank."

The staff also put tape on seats in the courtroom to promote social distancing, and had a sign-in sheet on which people would attest they did not have symptoms and on which they would provide their contact information so everyone in attendance could be notified if someone tested positive.

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. Editing by Michael Watanabe.

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