By Jack Queen

Law360 (July 21, 2020, 9:03 PM EDT ) An Eastern District of Texas judge agreed Tuesday to postpone a patent trial against the maker of the popular mobile game "Clash Royale," who had warned that the trial set to begin in two weeks could be a "superspreader" event amid a surge of COVID-19 cases in the Lone Star State.

U.S. Magistrate Judge Roy S. Payne pushed the Aug. 3 trial to Sept. 14, saying he was swayed by the lack of opposition to a postponement by Gree Inc., a Japanese game maker accusing Supercell Oy of infringing two of its patents.

New daily COVID-19 case counts in Texas are now 1,000 times higher than they were in mid-March when the Eastern District of Texas suspended jury trials over COVID-19 fears, Supercell noted in a July 10 motion.

"The dire situation caused by the coronavirus warrants a continuance [because] the risk to human health far exceeds the need to proceed with the current trial date," it said.

Supercell said forging ahead would have been unfair because witnesses from Finland, its home country, are currently barred from visiting the U.S., while Gree's Japanese witnesses, by contrast, do not face such restrictions.

One of Supercell's witnesses is also immunocompromised and has been advised by his doctors to stay away from epicenters like Texas, the company said.

Based on typical infection rates and airplane capacities, Supercell estimated trial attendees could collectively be exposed to between 136 and 880 infected people while traveling to the court.

"Forcing witnesses and legal staff — particularly those who may face severe or fatal complications from COVID-19 — to travel from nearly a dozen major cities during the current outbreak and be confined indoors for extended periods creates an incredibly troubling and avoidable health hazard," it said.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

The postponement is the latest development in a long battle between Supercell and Gree, which included Gree filing 32 preliminary injunction actions and six lawsuits alleging patent infringement against Supercell in 2017 and 2018.

During that same period, Supercell filed seven inter partes review petitions and 16 post-grant review petitions with the Patent Trial and Appeal Board, Supercell said.

The asserted patents, which include the two at issue, relate to controlling and presenting a game to remote users through a communications network, controlling in-game purchases and transfers of objects, controlling city simulation games and utilizing a higher visual effect for presenting games on computers and mobile devices.

Judge Payne said in a July 20 report and recommendation that he would deny Supercell's request for a partial summary judgment that its "Clash Royale" and "Brawl Stars" mobile games did not infringe claims in two Gree patents.

Supercell had notably argued that it did not infringe two method claims in Gree's patents because the "distribution of software to users" was not enough to show direct infringement. But Judge Payne was persuaded by Gree's contention that it was the "execution" of Supercell's software — rather than the distribution — that indicated that it performed the claims.

"What party is performing these limitations is a question of fact, and Gree has presented expert testimony asserting that Supercell, through software on their servers and communications to software on end user devices that have code enabling it to control the end user devices, is performing the claim limitations," the judge wrote.

Having also found genuine issues of material fact with regard to remaining asserted claims in Gree's patents, Judge Payne concluded that the Japanese game maker was able to make its case for "each type of claim and corresponding infringement theory."

Also on Tuesday, Eastern District of Texas Judge Rodney Gilstrap refused to postpone another patent trial that is also set to begin Aug. 3 in the same courthouse in Marshall, Texas. He rejected Apple Inc.'s argument that the suit against it by PanOptis should be delayed because of the "extraordinary" risk posed by the pandemic, and said "moving forward with the trial as scheduled is the better choice."

The patents at issue are U.S. Patent Nos. 9,956,481 and 9,795,873.

Supercell is represented by Michael John Sacksteder, Jessica M. Kaempf and Geoffrey Robert Miller of Fenwick & West LLP.

Gree is represented by Steven Moore, Kasey Koballa and Michael T. Morlock of Kilpatrick Townsend & Stockton LLP.

The case is Gree Inc. v. Supercell Oy, case number 2:19-cv-00070, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Tiffany Hu. Editing by Steven Edelstone.

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