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Law360 (February 2, 2021, 2:57 PM EST ) A Sisvel Group subsidiary told a Delaware judge Monday it has concerns, as does defendant LG Electronics Inc., about the possibility of holding a scheduled in-person April trial in a patent infringement case over telecommunications technology as the coronavirus pandemic rages on.
In a letter to U.S. District Court Judge Leonard P. Stark, Brian E. Farnan of Farnan LLP, who represents Sisvel subsidiary 3G Licensing SA and Dutch telecommunications company Koninklijke KPN NV in a series of related patent cases, asked the court to schedule a teleconference to discuss scheduling matters.
In the letter, Farnan said the plaintiffs "respectfully request a teleconference to discuss with the court whether, in light of current COVID-19 conditions, the court anticipates that the first trial in these matters will take place in April as currently scheduled."
Parties need direction from the court as to how to best proceed, he said, adding that LG Electronics shares concerns about whether the trial can go on as scheduled. The defendants in related cases also requested a scheduling conference be called, the letter said.
"Unfortunately, the current conditions for the COVID-19 pandemic are still fluid and remain of great concern. With even more infectious variants now being identified, there is no guarantee that circumstances will be any different over the next few months," Farnan told the court. "Against this backdrop, it is simply not practical to conduct an in-person jury trial beginning on April 12, 2021."
Farnan said LG Electronics is concerned that, given travel restrictions, certain corporate representatives and "key witnesses" will be unable to travel to the U.S. for trial.
"Moreover, a partially or fully remote trial poses serious due process concerns and would prejudice LGE," the letter said.
"There is also no reason to rush to hold a trial in April," the letter said. "The lone patent in the case expired in 2016, and any relief is limited to monetary damages. KPN thus will not suffer prejudice from a temporary postponement. LGE respectfully requests that the court postpone the April 2021 jury trial date for a later date when the trial can be safely conducted in-person."
Also, the letter raised concerns about whether the court has the ability to seat a "fair and representative jury" amid the pandemic.
"Given that prospective jurors would need to complete a COVID-19 questionnaire, it is highly likely that certain classes of jurors — older jurors or others who are in high-risk categories — would be excluded from serving on a jury altogether," the letter asserted.
The letter also pointed to the "dangers and impracticalities" of an in-person trial, citing a Texas breach of contract matter in which a judge had to declare a mistrial in November after numerous trial participants tested positive for the coronavirus.
The first of five related cases slated for trial involves patent infringement claims against LG Electronics, according to court records. The cases, filed against multiple global electronics firms, assert claims of patent infringement related to telecommunications technology.
In 2017, 3G Licensing, Koninklijke KPN NV and French telecommunication company Orange SA filed the patent infringement case against LG Electronics asserting, in part, that it infringed U.S. Patent No. 6,212,662. The patent is associated with communication devices' transmission of data and technology to check for errors, according to court records.
Later trials are scheduled against Sierra Wireless Inc., HTC Corp., BlackBerry Corp. and Lenovo, according to court records.
Counsel for 3G and LGE did not immediately respond to a request for comment Tuesday.
3G, KPN and Orange are represented by Brian E. Farnan and Michael J. Farnan of Farnan LLP.
LG Electronics is represented by Rodger D. Smith of Morris Nichols Arsht & Tunnell LLP and Ashish Nagdev of Sidley Austin LLP.
The case is 3G Licensing SA et al. v. LG Electronics Inc., case number 1:17-cv-00085, in the U.S. District Court for the District of Delaware.
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
