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Law360 (October 26, 2020, 6:01 PM EDT ) Google has asked U.S. District Judge Rodney Gilstrap to allow livestreamed testimony from at least one key witness in an upcoming in-person patent trial over video-streaming tech, saying it wouldn't taint the trial's fairness.
Google said Friday that its invalidity expert, Kannan Ramchandran, is in a high-risk group for COVID-19 and should be allowed to testify remotely in the suit by Personalized Media Communications LLC, which accuses Google of infringing several patents covering adaptive video-streaming technology. Trial is currently set in the Eastern District of Texas for Nov. 2.
"Courts have increasingly approved of remote testimony as technology has evolved … Google understands that this court recently allowed remote testimony as well," the online ad giant told Judge Gilstrap, referencing a recent Apple v. PanOptis trial in which at least one person testified live, an Apple witness appearing from Brussels.
A patent bench trial in New York federal court in July, between pharmaceutical companies Ferring and Serenity, also saw testimony from remote witnesses from Europe.
Google did not say more about Ramchandran's situation, redacting the details, but said PMC is OK with his testifying remotely.
But it's a different story with regard to remote testimony by senior Google patent counsel Laura Sheridan, a "maybe" witness. Google wants Sheridan to livestream her potential appearance as well, but said PMC is against it.
Sheridan is based in New York. Under New York's current safety schema, if she testified in person, she would have to isolate herself completely for two weeks after returning from Texas, one of the states New York tags as creating a high risk for travelers to make themselves vectors of disease.
PMC will "have ample opportunity to cross-examine Mrs. Sheridan under oath in open court" even with livestreamed testimony by Sheridan, Google said. "PMC opposes Google's request for her to appear remotely. PMC does not refute the impracticality of Mrs. Sheridan travelling to Marshall, Texas for trial."
Google listed a second reason for Sheridan's remote testimony as well, but that one was redacted.
It wasn't long ago that remote witnesses were a highly controversial ask, with some observers labeling the method as a gateway to "court-sanctioned harassment" of corporate executives.
The PMC trial was originally slated for Oct. 1, but Judge Gilstrap delayed it a month after Google argued for a three-month delay, warning of "unnecessary and severe health and safety risks, during a time when many experts expect a resurgence" of COVID-19.
Representatives and counsel for the parties were not immediately available for comment Monday.
The patents-in-suit are U.S. Patent Nos. 7,747,217; 7,769,344; 7,865,920; 8,601,528; 8,739,241; and 9,674,560.
Google is represented by Dan Bagatell and Andrew Dufresne of Perkins Coie LLP, and Charles Verhoeven, Carl Anderson and David Perlson of Quinn Emanuel Urquhart & Sullivan LLP.
PMC is represented by Arun Subramaniam, Tamar Lusztig, Geng Chen, Joseph Grinstein, Meng Xi, Rachel Black and Floyd Short of Susman Godfrey LLP, S. Calvin Capshaw and Elizabeth DeRieux of Capshaw DeRieux LLP, Dmitry Kheyfits of Kheyfits Belenky LLP and Timothy DeWitt of 24IP Law Group USA PLLC.
The case is Personalized Media Communications LLC v. Google LLC et al., case number 2:19-cv-00090, in the U.S. District Court for the Eastern District of Texas.
--Additional reporting by Dani Kass, Daniel Siegal, Britain Eakin and Dave Simpson. Editing by Jack Karp.
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