My firm has compiled and summarized the steps that various courts and governmental agencies in the Intellectual Property area have taken to try to minimize the spread of COVID-19. I have posted about the things the Massachusetts courts have done, but please click here to see what the other New England Federal Courts, the USPTO, Copyright Office, and some of the international IP agencies are doing in light of the epidemic.
Judge Sorokin denied Covidien’s emergency motion to continue the bench trial date, currently scheduled to begin on September 23, concerning Ethicon’s seeking of a declaration that its Enseal® X1 surgical tool does not infringe several Covidien patents. Covidien sought the continuance because its technical expert had undergone an unexpected heart surgery; Ethicon opposed on the grounds that he was but one of a dozen experts, that the ailing expert was to testify only as to a single issue, and that all of the witnesses had made travel and work arrangements to be in Boston for the trial. Judge Sorokin apparently agreed with Ethicon; rather than move the trial entirely, he ordered that it go forward with Covidien permitted to submit the expert’s report and a proffer of his expected testimony. Once the expert has recovered, Judge Sorokin will take his testimony and consider whether any further testimony from any party is thereby necessitated.
Judge Young denied without prejudice a pair of motions to seal. He noted that the Protective Order entered in the case governs only inter-party disclosures, and cannot provide the basis for filing a document under seal with the court. This case, which involves claims of misappropriation of trade secrets relating to metal 3D printing in connection with the hiring of a former Desktop Metal employee as well as patent infringement claims, was filed in March of 2018, with a motion for preliminary injunction, based on the asserted patents, filed shortly thereafter. In keeping with his typical approach, Judge Young collapsed the motion with an early trial, which he scheduled for July. Markforged then filed counterclaims alleging that Desktop Metal’s founders themselves took Markforged trade secrets with them when they started the company. Desktop Metal sought to bifurcate and try only the patent claims in the July trial, or to allow an expedited hearing on its motion for preliminary injunction, citing the “morass” of additional factual and legal elements from the counterclaims that would make the targeted July trial date unworkable. The motion was denied without prejudice, as was a motion to continue the trial to later in July. A series of motions to dismiss were denied (although Judge Young did note that many of the affirmative defenses seemed to be mere boilerplate, “interposed for the purpose of delay”), meaning a complex litigation involving patents, trade secrets, contractual and other state law claims may well run only four months. One should always be aware that, when appearing before Judge Young, there is a strong chance of a quick trial if preliminary relief is sought.