U.S. District  Judge Beth Labson Freeman of the Northern District of California.

U.S. District Judge Beth Labson Freeman enjoys presiding over trials. So on one level, she was disappointed at having to pull the plug on Finjan Inc.'s and Cisco Systems Inc.'s patent infringement jury trial next month.

But on another level, the San Jose federal judge said at a Zoom hearing Tuesday, she knew the Northern District of California's decision to postpone civil jury trials until October was the right call. She told the lead attorneys for Finjan and Cisco that she was "fully supportive" of the district leadership's decision, and set Oct. 19 as the new trial date.

Freeman said it was inevitable that in the current COVID-19 pandemic environment, some jurors summoned into court would wonder, "Why are you making me do this for you on a civil case, now?"

Finjan is suing Cisco over five anti-malware patents after a 20-year partnership between the companies went sour. Finjan sued in 2017 after Cisco acquired Sourcefire and incorporated its technology, which Finjan accuses of infringement, into Cisco's security products. Cisco has tried and failed to persuade the Patent and Trademark Office to invalidate Finjan's patents.

Freeman had planned to try the case in the San Jose courthouse's large ceremonial courtroom, using tape to indicate where participants could safely stand and sit. She also planned to send jurors to an empty courtroom for deliberations, rather than the smaller jury rooms.

Freeman sounded inclined to keep many of those plans in place come October, depending on how things go with the reopening of businesses and courthouses around the country.

"You may know more than we will," Freeman told one of Cisco's lead attorneys, Norwood "Woody" Jameson, a partner who is based in the Atlanta office of Duane Morris.

"I'm not going to comment on what our state's doing, your honor," Jameson said. "It's interesting—I'll say that."

"We wish good health to everyone in the state of Georgia and everywhere else," Freeman said. But "California's a lot slower, and so we will see what happens."

If civil trials are indeed back on in October in the Northern District, the judge said she would still anticipate bringing prospective jurors into the courtroom for voir dire in groups of 10, rather than the usual 50, to maintain physical distance. "We may do 10 of them at 9 in the morning, and another 10 of them at 10:30," Freeman said. "And I still think, frankly, that by 1 o'clock in the afternoon you're going to have your jury sworn."

A tougher challenge might be the jury questionnaire that screens prospective jurors for hardship, including particular vulnerability to COVID-19, or biases such as personal connections to the parties. Freeman said she's inclined to mail out or email questionnaires—rather than force potential jurors with COVID vulnerability to fill them out at the courthouse. But that would preclude her from personally admonishing the prospective jurors not to talk with anyone or do research about the case right at the beginning.

"It's one thing to write it down at the top of the questionnaire," she said. "It's another thing for them to sit in the courtroom and have me tell them."

She invited Finjan and Cisco to think it over. "If you use jury consultants, they might have a lot of good ideas for me on that, on what you gain and what you lose by doing it remotely," she said.

Opposite Jameson at Tuesday's hearing was Fish & Richardson partner Juanita Brooks for Finjan.

"To have such an experienced trial team on both sides is a pleasure for me," Freeman said. "And I guess we'll all put our decades of experience on this and come up with some new ideas. It won't be like any we've ever done, but I have confidence it will be as robust a trial as you've had in other cases."