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Law360 (October 7, 2020, 9:05 PM EDT ) Apple told a Texas federal judge Tuesday that special court entrance rules should apply to its senior director of IP litigation and that he shouldn't have to quarantine for two weeks before entering the courthouse for an Oct. 26 patent trial against VirnetX.
Apple, gearing up for a hotly anticipated damages retrial against VirnetX over network security patents after an earlier $503 million verdict was overturned in November, told U.S. District Judge Robert Schroeder III that David Melaugh should receive a special exception to attend the trial starting Oct. 26 in Tyler.
Redactions in the document obscure the exact details of the situation, but Apple says Melaugh would not be able to attend key proceedings absent an exemption by the court.
Without a special rule for Melaugh, he "would not be permitted to attend the upcoming pretrial conference and a substantial portion of the upcoming trial" under current court COVID-19 orders, Apple said. But Melaugh should be "permitted to attend the trial in person prior to the expiration of a 14-day quarantine period," it argued, with a negative COVID-19 test.
The court order Apple refers to — Standing Order 6:20-01 — excludes five categories of people from the courthouse, one of which references a 14-day period.
The order mandates the exclusion of "any person who has, within the past 14 days, been in a foreign country from which travel is restricted by Presidential proclamation due to transmission of COVID-19 there." It further excludes from the courthouse people who have tested positive and have no doctor's note stating they're not contagious, people who are under orders to self-quarantine, people who have any COVID-19 symptoms, and people who live with or care for anyone in the prior four categories.
A special exception for Melaugh "is critical to safeguarding Apple's ability to defend itself in this matter," it said.
The COVID-19 pandemic has killed 16,111 people in Texas, and there were 3,872 new confirmed cases in the state on Tuesday, according to the Texas Department of State Health Services.
Apple said Melaugh will obtain a negative COVID-19 test before entering the courthouse. However, it is now common knowledge that people do not typically test positive until days after they are infected.
According to Harvard Medical School, "If you are tested on the day you were infected, your test result is almost guaranteed to come back negative … The chance of getting a false negative test result decreases if you are tested a few days after you were infected."
People can be contagious for two or more days before their viral load is high enough to trigger a positive test result, according to infectious disease researchers at Wake Forest University and the University of Pittsburgh.
Apple said VirnetX does not oppose the motion.
Representatives for the parties were not immediately available for comment.
The patents-in-suit are U.S. Patent Nos. 6,502,135 and 7,490,151.
VirnetX is represented by Bradley Caldwell, Jason Cassady, John Curry, Daniel Pearson, Hamad Hamad, Justin Nemunaitis, Chris Stewart, John Summers and Warren McCarty III of Caldwell Cassady & Curry PC.
Apple is represented by Gregory Arovas, Robert Appleby, Jeanne Heffernan, Joseph Loy and Leslie Schmidt of Kirkland & Ellis LLP.
The case is VirnetX v. Apple, case number 6:12-cv-00855, in the U.S. District Court for the Eastern District of Texas.
--Additional reporting by Dani Kass, Khorri Atkinson, Britain Eakin, Ryan Davis and Tiffany Hu. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
