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Law360 (November 2, 2020, 10:37 PM EST ) A Delaware federal judge on Monday indefinitely postponed an in-person jury trial that was set for later this month in Guardant Health's infringement suit against Foundation Medicine Inc. over cancer testing patents, a scheduling change that comes on the heels of COVID-19 safety concerns raised by Foundation.
U.S. District Judge Leonard Stark initially scheduled the trial for Nov. 30, saying the case has been pending for three years and has already been delayed twice. The judge said in that Oct. 16 order that he believed the trial could be conducted safely.
But Foundation objected to the trial date, pointing to a recent spike in coronavirus cases. "FMI is principally a healthcare company and it believes that the health risks associated with proceeding with a jury trial in the courtroom on November 30, 2020 far outweigh any benefits of efficiency or expediency," it said in its objection.
Judge Stark appeared to be swayed Monday, continuing the case in a brief oral order noted in the case docket. He didn't set a new trial date, and the docket entry didn't include his reasoning.
The order came during a teleconference, according to the docket.
Guardant is alleging that Foundation ACT liquid biopsy tests infringe Guardant patents covering the Guardant 360, which uses advanced DNA sequencing for individualized cancer therapy treatments.
Guardant filed the instant suit in November 2017, but the parties have been involved in additional litigation involving a related patent. They settled that dispute in 2018.
Meanwhile, the Patent Trial and Appeal Board agreed to review two of the patents at issue in this case back in August 2019. The board issued a pair of decisions in August that upheld one of 16 challenged claims in one patent and 11 of 26 claims in the other.
In his Oct. 16 order, Judge Stark said the court is only holding one trial at a time because of pandemic-related restrictions, and that 200 civil jury trials are scheduled for 2021 in Delaware. That tally doesn't include criminal trials or civil trials that have been postponed and are waiting to be rescheduled, he said.
Among the safety modifications, Judge Stark said all witnesses will testify remotely, each side will only be allowed to have five representatives in the courtroom, and trial participants, including attorneys, will have the option of remote participation for things such as opening and closing statements and cross-examinations.
Foundation argued that cases are spiking in Massachusetts, where the majority of the trial team is located, and that more than half of the team can't go to Delaware because of the health risks.
Foundation also acknowledged the possibility of its attorneys participating remotely but said some of the team, including the lead attorney, will have to travel "and will have no choice but to operate in groups indoors in close quarters for long hours."
Counsel for the parties didn't immediately return requests for comment late Monday.
The patents-in-suit are U.S. Patent Nos. 9,598,731, 9,834,822, 9,840,743 and 9,902,992.
Guardant Health is represented by Joseph J. Farnan Jr., Brian E. Farnan and Michael J. Farnan of Farnan LLP.
Foundation Medicine is represented by Jeremy A. Tigan and Karen Jacobs of Morris Nichols Arsht & Tunnell LLP.
The case is Guardant Health Inc. v. Foundation Medicine Inc., case number 1:17-cv-01616, in the U.S. District Court for the District of Delaware.
--Additional reporting by Dani Kass and Britain Eakin. Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
