By Tiffany Hu

Law360 (July 21, 2020, 9:16 PM EDT ) Eastern District of Texas Judge Rodney Gilstrap on Tuesday shot down Apple's request to postpone an in-person jury trial in a patent lawsuit over 4G LTE technology, quoting poet Robert Frost in his reasoning why the trial should begin in two weeks despite the pandemic.

In a 9-page order, Judge Gilstrap rejected Apple's bid earlier this month to delay an Aug. 3 trial for two months amid the recent surge in COVID-19 cases in Texas. Apple had argued that holding the trial as scheduled would endanger "all involved in the trial," as well as local areas and the areas all participants would be going back to after the trial.

But Judge Gilstrap said that maintaining the trial date was the "better choice," warning that calling off the planned trial next month will cause "lengthy, protracted delay, which will simply guarantee material prejudice to all parties."

"The task of balancing very real public health concerns against the right of the parties to resolve their far-reaching disputes is a challenge this court has not sought and does not relish," the judge wrote. "However, as Robert Frost admonished in A Servant to Servants, 'the best way out is always through.'"

Judge Gilstrap also noted the various safety measures he has imposed in his courtroom, including daily sanitation of the facilities, face shields, temperature checks and restricting the number of attorneys seated at counsel tables.

The judge also agreed to allow three witnesses who live in Europe to testify via live video. He said that while he would prefer in-person testimony, "these are unprecedented times, which call for unprecedented measures."

"Real time live video testimony from these witnesses presented via monitors in the courtroom will enable the jury to make instantaneous deductions about each such witness and his testimony," he said.

Also on Tuesday, Eastern District of Texas Magistrate Judge Roy Payne postponed a patent trial in video game maker Gree Inc.'s suit against rival Supercell Oy, which was set to begin Aug. 3, the same day as the Apple trial, in the same Marshall, Texas, courthouse, amid pandemic concerns.

Supercell argued that surging virus cases in Texas meant that the jury trial "presents the risk of becoming a super spreader event." Because Gree did not oppose the motion, Judge Payne rescheduled the trial to Sept. 14.

The fight over whether or not to hold the August trial in the Apple case as planned comes in a lawsuit filed last February by PanOptis, which alleges that Apple is infringing the patents by offering 4G LTE capability on the iPhone, iPad and Apple Watch. PanOptis said it tried to get Apple to take a license, but that the company did not get on board.

After Apple asked Judge Gilstrap to push back the trial due to the COVID-19 pandemic, PanOptis countered Monday that the smartphone giant's bid to delay the Harrison County trial was based on incomplete and inaccurate information.

"If there are strict social-distancing and masking requirements in place now because of the governor's rules, and infections are currently low in Harrison County, now is the best and safest time to hold a trial in the Eastern District," PanOptis said. "Apple hired a doctor to tell the court to wait to start holding trials until flu seasons starts in the United States and when independent modeling predicts virus infections and deaths will increase. This is not a credible position."

This prompted a same-day reply from Apple that contended that PanOptis' response "throws mud" at its medical expert, while referring to the company's claims that Apple is enacting delay tactics as "smears."

"Plaintiffs' assertion that the situation could grow worse in two months is not evidence that it is safe to hold a trial today," Apple said Monday. "Contrary to plaintiffs' conclusion, the fact that current projections estimate 80,000 more deaths in the next 60 days underscores just how serious this pandemic is now."

The patents-in-suit are U.S. Patent Nos. 8,005,154; 8,019,332; 8,385,284; 8,411,557; 9,001,774; 8,102,833; and 8,989,290.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

PanOptis is represented by Samuel Baxter, Jennifer Truelove and Steven Pollinger of McKool Smith PC, Jason Sheasby and Hong Zhong of Irell & Manella LLP, and Jill Bindler of Gray Reed & McGraw LLP.

Apple is represented by Mark Selwyn, Mindy Sooter, Timothy Syrett and Brittany Blueitt Amadi of WilmerHale and Melissa Smith of Gillam & Smith LLP.

The case is Optis Wireless Technology LLC et al. v. Apple Inc., case number 2:19-cv-00066, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Ryan Davis, Dani Kass, Cara Salvatore and Dave Simpson. Editing by Abbie Sarfo.

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