In an earlier blog post, we commented on how the COVID-19 pandemic has affected and may continue to affect patent litigation. A recent order from one of the country’s busiest patent courts, the District of Delaware, reflects the ways in which the pandemic may affect patent trial practice.

On July 2, in Sunoco Partners v. Powder Springs Logistics, Chief Judge Leonard P. Stark of the District of Delaware announced these procedures for a patent-infringement trial tentatively scheduled for August 2020:

  • All witnesses will testify remotely – and not only for social-distancing reasons. The court also expressed concern that the side with more witnesses “who end up being unable to come to the courtroom” could be at a disadvantage, that witnesses “may feel pressure to conceal symptoms and/or coronavirus-related concerns,” and that the court would rather not decide whether to “permit,” “require” or “prohibit” witnesses from wearing face coverings.
  • The plaintiff will be limited to a total of four attorneys, assistants, consultants or corporate representatives in the courtroom at a time. Each of the two defendants will be limited to three (for a total of six). The court encouraged out-of-state counsel to consider “arriving in Delaware more than 14 days prior to the start of trial, self-quarantining, and developing strict internal procedures to maintain trial-team bubbles.”
  • The parties are to “take all necessary steps to eliminate paper exhibits (i.e., absent compelling reasons, all exhibits shall be displayed to witnesses and the jury electronically).”
  • “The Court will simulcast a video feed of the trial into another room in the courthouse, in which the Court’s policies for social distancing and face covering will be enforced.” The public, the media and overflow members of the trial teams will be in that room.

The court noted several logistical issues that would be decided later: “how voir dire will be conducted, where the jury will be seated, where the jury will go during breaks and for deliberations, where counsel tables will be placed, how to ensure that exhibits needed for cross-examination are kept secure until needed, whether counsel will be permitted to be present in the same room with witnesses who are being examined remotely, face covering and other PPE requirements for those in the courtroom, etc.”

While these procedures reflect a creative approach to trial practice, they are not one-size-fits-all. The court cautioned that they were “something of an experiment” and were tailored to this specific case. The court also warned that the August trial would be postponed if the court does not reach the jury-trial phase of its reopening guidelines by the trial date. Nevertheless, these procedures offer a useful glimpse into how patent trial practice may look in the federal courts as they begin to reopen.