By Dorothy Atkins

Law360 (June 29, 2020, 4:21 PM EDT ) Eastern District of Texas Judge Rodney Gilstrap on Monday rejected a patent owner's request to postpone next week's jury trial in its case against Samsung as COVID-19 cases surge in Texas, saying that doing so would be unfair to Samsung and delay the case for many months.

Image Processing Technologies LLC asked the judge Sunday, just over a week before the trial is set to kick off on July 6, to move it to August. The company said its attorneys are concerned for their health and believe there won't be a fair trial if jurors are distracted by worries about the virus, but Judge Gilstrap was unmoved.

He said delaying the trial, which will be conducted in person, would prejudice Samsung, since all of its witnesses and representatives have already traveled from South Korea to Marshall, Texas, for the trial and have been in quarantine in accordance with health guidelines.

"To tell Samsung — so close to the July 6 trial date — that all of its witnesses and representatives must go home and then return in a month or in a year would be unfair and a waste of resources," Judge Gilstrap said.

Furthermore, the pandemic has complicated the district's schedule to such an extent that postponing the trial now would mean it may not happen until sometime in 2021 or even beyond, he added.

Judge Gilstrap said that 125 people have been called for jury duty in the trial and he has "undertaken extensive efforts and planning to ensure that the trial in this case can proceed as safely as possible."

He also emphasized that "Marshall has so far been substantially spared from the current spike in cases of COVID-19 that Dallas and Houston have experienced."

"Texas is a large and diverse state, and while news from Dallas and Houston dominates the media coverage, the circumstances in less urban areas differ materially," he said.

In a declaration, IPT's lead counsel Henry C. Bunsow of Bunsow De Mory LLP argued that the case should be delayed because the "large upsurge in COVID-19 confirmed infections over the past week" in Texas has led the governor to advise people to stay home.

That could make it challenging to impanel a jury and poses health risks to his trial team as well as to jurors, who may have trouble concentrating on the technical issues in the case, he said.

"I am concerned that the jurors will be uncomfortable serving when their governor has suggested they should stay at home," he said. "I have real fear that my client cannot get a fair trial under these circumstances."

The dispute stems from a lawsuit that the Miami, Florida-based company filed in May 2016, accusing the Korean tech giant and its U.S. subsidiary of using technology in its smartphones, tablets and cameras that infringe patents covering face detection technology.

The trial was initially set for April, but Judge Gilstrap rescheduled the trial for June 1 and then again reset it for July 6, all the while insisting that the trial dates were firm.

In his filing Sunday, Bunsow asked to push back the trial again, noting that he is 71 years old and therefore in the "higher-risk" category for contracting severe complications if he were to catch the virus.

He said his co-counsel are also at higher risk, and they all must travel through Dallas or Houston, which are experiencing an upswing in infections, to get to Marshall.

"There is no way to ensure that members of my trial team or I will not become infected with the COVID-19 virus if we travel to or through these areas of current high infection rates," Bunsow said.

In a response brief filed Monday, Samsung said it takes no position on whether the trial should be postponed, but argued that if it is, it should be rescheduled for sometime after August, "when quarantining of visitors from overseas will foreseeably no longer be necessary."

Since witnesses and company officials are already in Texas, "it would therefore be a hardship for them to complete quarantine in their home countries only to have to turn around and return to the United States to begin the cycle again," it said.

Counsel and representatives for the parties didn't immediately respond Monday to requests for comment.

The Eastern District of Texas has already started having in-person jury trials this month, and U.S. District Judge Amos L. Mazzant III told Law360 that when jurors were asked if they were concerned about the virus, "not one hand went up."

The patent-in-suit is U.S. Patent No. 6,959,293.

IPT is represented by S. Calvin Capshaw and Elizabeth L. DeRieux of Capshaw DeRieux LLP and Henry C. Bunsow, Denise M. De Mory, Michael N. Zachary, Corey Johanningmeier, Nicholas Mancuso and Hillary N. Bunsow of Bunsow De Mory LLP.

Samsung is represented by Mark A. Samuels, Ryan K. Yagura, Nicholas J. Whilt, Brian M. Cook, Clarence A. Rowland, Darin W. Snyder and Marc Pensabene of O'Melveny & Myers LLP and Michael Jones of Potter Minton.

The case is Image Processing Technologies LLC v. Samsung Electronics Co. Ltd. et al., case number 2:20-cv-00050, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Ryan Davis and Daniel Siegal. Editing by Orlando Lorenzo and Emily Kokoll.

Update: This story has been updated with information about Judge Gilstrap's order. 

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