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Patent Litigants Need ‘Perfect Storm’ to Move from Jury Trials

Aug. 20, 2020, 10:30 AM

As the coronavirus pandemic began to take hold in the U.S., a patent dispute between Centripetal Networks Inc. and Cisco Systems Inc. changed course. The companies gave up on the idea of a jury trial, choosing instead to try their case in front of the judge.

The virus outbreak continues to disrupt courts, with widespread postponement of jury trials. Cisco and Centripetal’s dispute is an example of companies choosing an alternative route and pushing ahead with a bench trial in a high-stakes case with hundreds of millions of dollars on the line.

Bench trials can offer a speedier—and, in some situations, potentially safer— alternative for companies tangled in patent fights during the pandemic, attorneys say. Businesses around the country are considering whether such trials are better than having their case heard by a jury.

“It’s a discussion that a lot of litigants are having right now,” Ted Stevenson, a trial attorney at McKool Smith PC, said.

How many bench trials occur as a result of the pandemic remains to be seen. Judges can’t require companies to waive their constitutional right to a jury trial. And it must be agreed to by both sides, which can be difficult during a contentious dispute. Patent owners, in particular, may be reluctant to give up perceived advantages with jurors.

“It takes a perfect storm where each side thinks that giving up a jury trial is to their advantage,” said Roger Denning, a trial lawyer with the intellectual property law firm Fish & Richardson PC.

Jury Trials Delayed

There has been only one pandemic-era, in-person jury trial in a patent case, held this month in the U.S. District Court for the Eastern District of Texas. A jury trial in another East Texas patent case was postponed last week, with the judge citing a coronavirus outbreak in the region.

Many courts continue to be cautious.

The District of Delaware has delayed all jury trials. The Northern District of California, which also handles a number of patent cases, said there will be no new jury trials at least until October, but judges can “offer bench trials by video conference in lieu of postponement.”

When jury trials do return, there will be judges who give priority to criminal cases over civil disputes, including patent cases, attorneys say. This could create additional delays.

“There are a variety of people trying to be creative as they work through this,” said Gerald Ivey, a lawyer at Finnegan Henderson Farabow Garrett & Dunner LLP who focuses on jury trial patent cases.

Virtual bench trials are one approach. The trial in Cisco and Centripetal’s dispute, overseen in the Eastern District of Virginia, played out over the course of several weeks on Zoom. The Southern District of New York has also held a patent bench trial over video conference.

Virus Factors

Bench trials are typical in patent cases over generic drugs. In other cases, various factors regularly weigh into the equation for companies considering trial type. These can range from whether an inventor’s story might have more sway with a jury to whether a judge may be better able to decide highly technical inventions and infringement allegations.

There are also factors unique to the pandemic, including the prospect of trying the case online. Lawyers generally prefer in-person trials and will take into account considerations such as how persuasive a case, or even a key witness, can be over video.

“It’s nice that we have the ability to use this type of technology,” Marylee Jenkins, an Arent Fox LLP intellectual property partner, said. But whether it is seen as a viable option in a particular case is “very fact-dependent.”

And what might be preferable for one side isn’t necessarily good for the other.

Even when it comes to deciding whether it’s better for the dispute to move fast or slow, “there are oftentimes going to be competing views between the parties,” said Kevin May, a trial lawyer at Neal Gerber & Eisenberg LLP.

Patent Owner Success

Patent owners, in particular, may be reluctant to give up a chance in front of a jury, thanks to a widespread belief that jurors tend to favor inventors in patent cases and are prone to give higher damages awards than judges.

A 2000 study by Kimberly A. Moore, then a law professor at George Mason University, found patent owners were “more successful in jury trials than in bench trials.” The study by Moore, now a Federal Circuit judge, examined patent trials over a 17-year span.

“Juries find for the patent holder more often on validity, infringement, and willfulness issues and they do award higher damages,” Moore wrote, although she found that the “magnitude of the differences” was smaller than might have been expected.

Still, some patent owners might find appealing the idea of having a bench trial now, rather than waiting an undetermined time for a jury trial. A business that is suing a competitor, for example, might be eager to get a case resolved in an effort to get the infringing product off the market.

There could be concerns about coordinating a jury trial, and gathering in the courthouse all of the jurors, court personnel, and other individuals who are required. The possibility that jurors, sitting in a courtroom during a health crisis, will feel forced into an uncomfortable situation is also something lawyers are considering.

There may be “a larger percentage of bench trials due to a lot of these different factors all converging, trying to both keep the judicial process moving along but at the same time keeping things safe,” said David Jakopin, head of the Silicon Valley IP group at Pillsbury Winthrop Shaw Pittman LLP.

To contact the reporter on this story: Matthew Bultman in New York at

To contact the editors responsible for this story: Renee Schoof at; Keith Perine at