By Dave Simpson

Law360 (July 20, 2020, 8:54 PM EDT ) PanOptis told U.S District Judge Rodney Gilstrap Friday that despite the ongoing pandemic, the Eastern District of Texas is a safe place for its patent suit against Apple to proceed to an in-person jury trial next month, but the tech giant shot back Monday and blasted claims that it is enacting delay tactics as "smears."

Optis Wireless Technology LLC said Friday that Apple's bid to delay the Harrison County trial in the suit over 4G LTE technology patents is based on incomplete and inaccurate information.

"If there are strict social-distancing and masking requirements in place now because of the governor's rules, and infections are currently low in Harrison County, now is the best and safest time to hold a trial in the Eastern District," it said. "Apple hired a doctor to tell the court to wait to start holding trials until flu seasons starts in the United States and when independent modeling predicts virus infections and deaths will increase. This is not a credible position."

Apple's reply reiterated its point that August is not a safe time to hold an in-person trial in Texas. It also said PanOptis' response "throws mud" at its medical expert, while referring to the company's claims that Apple is enacting delay tactics as "smears."

"Plaintiffs' assertion that the situation could grow worse in two months is not evidence that it is safe to hold a trial today," Apple said Monday. "Contrary to plaintiffs' conclusion, the fact that current projections estimate 80,000 more deaths in the next 60 days underscores just how serious this pandemic is now."

Last week, Apple asked Judge Gilstrap to postpone the trial for two months in response to "one of the most serious threats to public health and safety that the nation has ever experienced."

Holding the trial as scheduled would endanger "all involved in the trial — as well as the local communities in and around the Marshall Division and the communities to which all participants would be returning after trial," Apple said.

Georgia Tech's COVID-19 Event Risk Assessment Planning Tool shows "greater than a 90% likelihood of at least one person having COVID-19 in a group of 100 people gathered in Harrison County," the county where the trial will take place, Apple said. That's about the number that will be present when a jury pool shows up to voir dire with a courtroom full of out-of-town lawyers and corporate representatives, the company said.

Apple cited a growing consensus that aerosols, or clouds of micro-droplets, can hang in indoor air hours after they are produced through speaking or forceful breathing. Medical reports have shown people are catching the virus after it has circulated through central air conditioning or from fellow bus passengers who were more than 15 feet away, the tech giant said.

PanOptis responded Friday, arguing Apple is trying to indefinitely delay the case. It said if the trial is postponed to October, it will most likely be delayed for much longer because the pandemic is likely to worsen.

"The right to jury is not just the right of the parties to this lawsuit — it is the right of the citizens of this country to sit in judgment," PanOptis said. "Apple has no right to decide for the citizens of the Eastern District when they can exercise their constitution duties."

The company lambasted the University of Texas epidemiologist that Apple consulted for its motion, claiming he has said publicly the risk of infection is low in rural areas like the Eastern District, and that people there don't even need to wear masks. Apple fired back Monday, claiming PanOptis is misquoting the doctor.

Apple also countered what it called PanOptis' "strange view that jurors will somehow feel deprived of their 'right to sit' as a juror if they are not allowed to attend a five-day trial with 50 or more strangers during a surging pandemic."

The jury system is an important part of civil society, but the people of the Eastern District "would surely prefer to serve as jurors during a time when a patent trial would not create an undue risk of infection," it said.

The year-old complaint in the suit alleges Apple is infringing the patents by offering 4G LTE capability on the iPhone, iPad and Apple Watch. PanOptis said it tried to get Apple to take a license, but that the company did not get on board.

The patent owner has been in a similar fight with Huawei involving at least one of the same patents. That case ended in a post-trial settlement on Feb. 27 following a $13.2 million judgment in PanOptis' favor.

Apple has a trial scheduled in another suit in the Eastern District of Texas, this one in Tyler, in a case brought by VirnetX.

The patents-in-suit are U.S. Patent Nos. 8,005,154; 8,019,332; 8,385,284; 8,411,557; 9,001,774; 8,102,833; and 8,989,290.

PanOptis is represented by Samuel Baxter, Jennifer Truelove and Steven Pollinger of McKool Smith PC, Jason Sheasby and Hong Zhong of Irell & Manella LLP, and Jill Bindler of Gray Reed & McGraw LLP.

Apple is represented by Mark Selwyn, Mindy Sooter, Timothy Syrett and Brittany Blueitt Amadi of WilmerHale and Melissa Smith of Gillam & Smith LLP.

The case is Optis Wireless Technology LLC et al. v. Apple Inc., case number 2:19-cv-00066, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Ryan Davis, Dani Kass, Cara Salvatore and Tiffany Hu. Editing by Philip Shea.

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