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Law360 (February 17, 2021, 6:58 PM EST ) VLSI Technology LLC slammed what it described as the latest in a string of attempts by Intel Corp. to delay a computer chip patent infringement trial set to begin Monday in the Western District of Texas, arguing Intel's "eve of trial" motion to continue is meritless and prejudicial.
Intel "has persistently sought to delay a resolution of the merits of this case," and its motion should be denied similar to prior ones, VLSI said Tuesday in response to the tech giant's sealed Feb. 8 renewed motion to push the trial to April.
The trial, in which VLSI accuses Intel of infringing three computer chip patents, was supposed to start Tuesday, but U.S. District Judge Alan D. Albright delayed it a week after a rare winter storm blanketed much of Texas, including Waco, in several inches of snow.
"Despite the fact that the trial in this matter has already been continued multiple times, on the eve of trial, and with the trial teams for both sides having already relocated to Waco, Intel has filed yet another meritless motion seeking to prevent this case from being decided on the merits," VLSI said.
According to VLSI's response, Intel argued the continuation is justified due to the Lone Star State's new COVID-19 case and transmission rates. But VLSI said that, instead of helping, the newest virus numbers hurt Intel's argument and show transmission rates had dropped in Texas.
"Far from supporting reconsideration, this new fact underscores that the Court got it right when it found that it is safe to proceed with trial. Intel's motion for reconsideration is a baseless attempt to delay the trial and prejudice VLSI," the patent holder said.
VLSI, which is owned by investment funds with assets managed by Fortress Investment Group LLC, said it hired an epidemiologist with 40 years' experience to inspect the Waco courthouse, and that the expert concluded the trial could be "conducted safely with very minimal risk of transmission."
Judge Albright has also ordered myriad COVID-19 safety protocols that will apply to jurors, attorneys, witnesses and trial attendees. In a 13-page order issued Feb. 10, Judge Albright outlined protocols that include mandatory daily COVID-19 antigen testing and a live feed to limit the number of people in the courthouse.
The order also puts in place requirements for participants to wear masks and social distance at all times.
Most notably, trial participants, court staff and jurors will not be allowed to enter the courthouse unless they test negative for COVID-19 via a rapid antigen or PCR test, which will be administered daily by nurses at a location within walking distance of the courthouse. Anyone who tests positive can opt to be retested to rule out a false positive, the judge said.
Intel has previously taken its attempts to delay trial to the Federal Circuit. In January, the tech company petitioned for a writ of mandamus from the Federal Circuit, arguing Judge Albright had no authority to transfer the case from the Western District of Texas' Austin division to its Waco division to hold trial.
The U.S. district courthouse in Austin is closed due to the pandemic, but the Waco courthouse, where only Judge Albright holds court, remains open.
The Federal Circuit denied Intel's petition Jan. 21, saying it would not "second guess" the judge's decision.
In Tuesday's response, VLSI said Intel once again raised its argument that two unnamed witnesses will not be able to appear in person for trial in February, an argument that hasn't proved successful in the past. VLSI points out Intel doesn't guarantee the witnesses will be able to appear in person in an April trial, nor does it claim the witnesses are key to its case.
The patents-in-suit are U.S. Patent Numbers 7,725,759; 7,523,373; and 8,156,357.
VLSI is represented by Morgan Chu, Benjamin Hattenbach, Amy Proctor, Dominik Slusarczyk, Charlotte Wen, Brian Weissenberg, Benjamin Manzin-Monnin, Jordan Nafekh, Michael Strub Jr. and Babak Redjaian of Irell & Manella LLP; Craig Cherry of Haley & Olson PC; and Andy Tindel, J. Mark Mann and G. Blake Thompson of MT2 Law Group.
Intel is represented by William Lee, Louis Tompros, Kate Saxton, Gregory Lantier and Amanda Major of WilmerHale; J. Stephen Ravel and Kelly Ransom of Kelly Hart & Hallman LLP; and James Wren of Baylor Law School.
The case is VLSI Technology LLC v. Intel Corp., case number 6:21-cv-00057, in the U.S. District Court for the Western District of Texas.
--Additional reporting by Cara Bayles, Ryan Davis and Tiffany Hu. Editing by Andrew Cohen.
Correction: An earlier version of this story incorrectly described the relationship between VLSI and Fortress. The error has been fixed.
For a reprint of this article, please contact reprints@law360.com.
