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Law360 (June 14, 2021, 7:37 PM EDT ) Lowe's fired back on Monday at a bid by Taiwan-based Epistar to delay a California trial over its LED patents because COVID-19 cases in Taiwan are spiking, saying Epistar failed to explain what has changed since it told the court in late April that it would be ready for a summer trial.
Epistar has asked the court to push its suit against Lowe's back from July 13 until November, but the home improvement retail giant said in opposition that there's no good reason to grant the request, which was made about a month prior to the trial's start.
Epistar had argued in a June 9 motion that a delay is warranted because key Epistar witnesses and officials can't be vaccinated or travel to the U.S. for trial, so "it would be severely prejudicial for trial to proceed in a month." Epistar also pointed to the 15-hour time difference between Taiwan and California, saying it "renders video testimony and witness preparation infeasible."
But Lowe's said Epistar was well aware of such concerns when it agreed on April 28 to proceed with a July trial, calling its reference to the time difference "particularly galling" since the distance between Los Angeles and Taiwan hasn't changed since April.
"Rather than an unexpected circumstance that only later became apparent, Epistar agreed to the trial date with knowledge of and despite the very harms it now cites," Lowes argued. It went on to say that Epistar was likewise aware that COVID-19 would make scheduling difficult and that video appearances would be required. Such "logistical hassles are not 'good cause,'" Lowes noted, "but instead are simply the realities of litigation in the COVID era."
In its motion, Epistar said it had been working diligently to prepare for a July trial, but conditions in Taiwan deteriorated during May, with a surge in COVID-19 cases compounded by vaccine shortages.
"Due to the outbreak in Taiwan, several of Epistar's witnesses and representatives are unable to attend the currently scheduled trial without the highest personal sacrifice, including risking their health on a long-haul flight," it said, noting uncertainty around whether they could even get a COVID-19 test to be able to board a flight to the U.S.
It also argued that a delay wouldn't cause much inconvenience, though Lowe's took issue with that contention given that the trial has already been pushed back several times because of the coronavirus, and dockets are still struggling to catch up after COVID-19 closures.
"A schedule opening that is sufficient for a week-plus trial is not to be taken for granted. Epistar's insistence that its own difficulties and convenience must dominate the analysis is both unrealistic and frustrating," Lowe's said.
Epistar sued Lowe's in 2017, alleging that the retail giant is selling LED lightbulbs that infringe five of its patents. Epistar said in its complaint that it is "widely recognized as 'one of the pioneers in the LED filament industry'" and was one of the first companies to require related patents.
Epistar called the patents at issue "key achievements" of its ongoing research and development, saying, "These patents enhance the performance of LED filament bulbs and, as a result, help drive demand for Epistar's products."
Epistar had informed Lowe's multiple times of the allegedly infringing activity beginning in 2016, but Lowe's "continued to infringe, and profit from, the accused products," according to the suit.
Counsel for the parties did not immediately return requests for comment.
The patents-in-suit are U.S. Patent Nos. 6,346,771; 7,560,738; 8,791,467; 8,492,780; and 8,587,020.
Lowe's is represented by Robyn C. Crowther, Jamie L. Lucia, Michael B. Eisenberg and Anna M. Targowska of Steptoe & Johnson LLP.
Epistar is represented by James C. Yoon, Ryan R. Smith, Albert Shih and Lucy Yen of Wilson Sonsini Goodrich & Rosati.
The case is Epistar Corporation v. Lowe's Home Centers LLC, case number 2-17-cv-03219, in the U.S. District Court for the Central District of California.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
