The limits of virtual trials during the Covid-19 pandemic are about to be tested in Cisco Systems Inc.'s complex patent dispute with a Washington-area startup.
Centripetal Networks Inc., based in Herndon, Va., is alleging that Cisco infringed five of its network security patents, and seeking almost $500 million in damages. Their bench trial—to be conducted with Zoom’s video tools—is scheduled to start May 6 in the U.S. District Court of the Eastern District of Virginia.
The Eastern District, known for having one of the fastest-moving dockets in the country, isn’t the first court to hold a Zoom bench trial. But the proceedings may be some of the most complex conducted virtually so far, Cisco says.
“I would be sympathetic to the challenges that the trial lawyers are going to face at this upcoming trial,” said Patrick Arenz, a trial lawyer at Robins Kaplan LLP who is not involved in the case. “Certainly it will be more difficult than a typical trial.”
The far-ranging case involves complicated computer technology, including the technical specifications of various routers and other Cisco products that are alleged to infringe. Dozens of potential witnesses, spread across more than 10 states, are expected to present complex testimony, and there are thousands of pages of expert reports, Cisco wrote in court filings urging the court to delay the trial rather than conduct it online.
The trial will test the court’s ability to handle witnesses and documents with highly technical and nuanced information via a remote video connection. The versatility, communication skills, and focus of the involved attorneys also will be put to test as they put on their case in an unusual setting.
Seamless Mock Trial
Centripetal and Cisco had plans for a jury trial, but the judge turned to an in-person bench trial after the coronavirus outbreak. The judge later moved it to the video option.
Cisco objected, saying there were “compelling reasons not to conduct an unprecedented trial by videoconference during this time.” Centripetal argued Cisco was using the pandemic to delay the case.
Centripetal said a mock trial the two sides held on Zoom included the questioning of witnesses using exhibits, and the video technology worked “seamlessly.”
Ordering the trial to proceed as planned, U.S. District Judge Henry Morgan last week also rejected Cisco’s suggestion that the court use the company’s own WebEx video conference platform, rather than Zoom. Cisco had expressed concerns about Zoom’s security.
A Cisco representative said in an email videoconferencing is an effective tool in many judicial proceedings. But in addition “to the inherent complexities of this case, our primary concern is the protection of confidential information in this medium and believe that Cisco’s Webex technology is a much better platform for that purpose.”
An attorney for Centripetal declined to comment.
The companies aren’t alone in having to adjust patent trials during the coronavirus.
A judge recently pushed back a drug patent trial between Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC, after the companies expressed worries about plans for a bench trial next month in the U.S. District Court for the Southern District of New York.
With stay-at-home orders still in place in parts of the country, “it may prove difficult to arrange for even virtual witness testimony,” they wrote in a joint letter to the court. The judge said a phone conference will be arranged to discuss the “logistics” of the trial, now set for July.
Arenz said that trial lawyers likely will have to hone in on the most essential aspects of cases tried virtually.
“With these technological presentations, with everyone staring at a computer screen, there’s going to be less patience probably at the trial court level for irrelevant questions and less patience also for non-responsive answers,” Arenz said.
Cisco may be able to challenge on appeal the decision to hold a trial over Zoom, but it’s unlikely the U.S. Court of Appeals for the Federal Circuit would find the judge abused his discretion, Boston University law professor Paul Gugliuzza said.
“After all, the Federal Circuit itself has been conducting oral argument via telephone - and increasingly forgoing argument altogether,” Gugliuzza, who specializes in intellectual property law and civil procedure, said in an email.
Courts have held hearings and other proceedings remotely during the coronavirus outbreak, using phone conferencing and video. Jury trials have been postponed, but some judges are open to remote bench trials.
In Tennessee, a virtual bench trial was held this week in a business dispute between Liquid Metal LLC and Business Aircraft Leasing Inc. The video feed—with some participants’ cabinets and bed visible in the background—was streamed on YouTube.
A trial in a Texas man’s lawsuit against an insurance provider was also held remotely. Attorneys at Daly & Black PC, who represented the plaintiff in the case, Adil Ahmed, said there were some technical glitches, including issues with people figuring out how to share their screens. But the six-hour trial went relatively smoothly, they said.
One of the attorneys, Richard Daly, said the judge, who oversaw the trial from the actual courtroom, maintained control well—not an easy task in a virtual setting. Judges in other trials will have to similarly steer virtual trials or they could turn into an “absolute circus,” he said.
The case is Centripetal Networks Inc. v. Cisco Systems Inc., E.D. Va., No. 18-cv-00094.