The COVID-19 pandemic isn't stopping U.S. District Judge Henry Morgan of the Eastern District of Virginia from conducting a bench trial in a complex patent infringement case.

Centripetal Networks v. Cisco Systems formally got underway Wednesday via Zoom conference, beginning with a technology tutorial. Opening statements are scheduled to kick off Thursday in the case, in which startup Centripetal is seeking hundreds of millions in damages over cybersecurity patents. Although the court is videoconferencing the attorneys and witnesses by Zoom, the public is limited to audio-only telephone access.

Cadwalader, Wickersham & Taft partner John Moehringer and his firm have been tracking patent cases around the country, including those approaching trial. Moehringer notes that different district judges are taking different approaches to trials during the pandemic—whether it's postponing them, maintaining trial dates later this spring, or conducting them by web conference.

The National Law Journal spoke with him Wednesday about the challenges inherent in Centripetal, which involves five separate patents, nine accused product groups and more than two dozen witnesses spread around the world. (Moehringer is not involved in the case.)

What will be some of the challenges of proceeding by Zoom, given the complexity of the case?

There are definitely adjustments that are going to have to be made, in the preparation and the performance of the trial. I think today's presentation was relatively smooth, though it was just the technology tutorial.

What are some of the adjustments?

If you look at the pretrial order in this case, witnesses have to be in a different location than anyone on the trial team. So, that's going to be a very different way of doing things. Even on direct examination, normally there can be cues that go back and forth between the questioning attorney and the witness to make sure that it comes out smooth. If you have a witness that's going on a little too long you might be able to adjust to that. Whatever it might be, if you're in a different location, you're not going to be able to adjust quite as easily.

Is the coordination especially important here because of the numbers of patents, accused products and witnesses in the case?

Based on the tutorial today, it sounded like these patents cover a number of different aspects of [cybersecurity]. So, they'll have to get through a lot of things and keep everyone's attention. And that might be a little more difficult when everyone's looking at a screen, and at different locations.

At one point today the judge mentioned the screen had not clicked over to the witness. He really wanted to see the witness who was speaking, as opposed to the attorney.

How do you think objections will go?

Objections will be more difficult than the tutorial, which was mostly one side presenting [at a time]. I had a sense that everyone was trying to give the talking stick over as much as possible, so that thoughts could be completed, as opposed to more back-and-forth. But it will be interesting to see when witnesses are up and there are objections, how will that play out—the timing where one attorney has to interrupt, the witness has to stop and then the court has to come in.

There was a mention today of sidebars. And sidebars are something where the public basically will be disconnected. But even the attorneys all doing a sidebar via Zoom, I think, will be a different experience than some of the attorneys walking up to the side of the bench and speaking to the judge.

Given that it's a bench trial, does that mitigate the concerns about objections somewhat? The judge can take all of the objections under submission, right?

Maybe in a jury trial there would be a tendency to make sure that the objections happen quick enough to stop the evidence from coming in at all. But the attorneys are still going to want to preserve their objections and make their objections.

There was a mention today of the fact that once one side started talking, the other side was going to go silent, on mute. And again that was most likely because we're talking about the tutorial. When we're talking about a witness, the attorney that is going to do the cross-examination is going to want to stay more at the ready, to make an objection if needed.

Cisco says in its papers that it thinks it will be harder for the judge to assess the credibility of witnesses appearing by Zoom. Is that a fair concern?

I do think it's a fair concern. There have been other judges who have raised the same concern. One of the things we noticed when we started tracking patent cases across the country [over the last month], the first wave of cases was dealing with case management. The second wave was dealing with courts trying to do hearings again. Now, we're into a phase where we really see a lot of trials coming up.

This is the first one, but there are a number on that path. There has been a judge, Judge [Robert] Jonker of the Western District of Michigan, who mentioned that exact thing, that he is going to have an in-person bench trial, and one of the reasons he gave was credibility and seeing the witness is important.

Has he decided to put that case on hold or is he moving forward?

He said he was going to have to look at his caseload when the post-COVID calendar takes shape. And that he was also anticipating that there would be a backlog of criminal jury trials to clear first.

How are other judges approaching it?

Judge [Colleen] McMahon in New York decided to go forward with a bench trial, but the parties came back and said they felt concerned, so she moved it [from May 26] to July 6, that's the Ferring Pharmaceuticals case. There's also the Roku case where Judge [Alan] Albright in the Western District of Texas right now is planning going forward on June 1.

So some judges say we should go forward, and other judges say no. I definitely get the sense from [Morgan's] order and from a couple of statements the judge made today that national security, in this particular case, was an important part of why this judge felt the need to move forward.

I think he's said national security, but even if national security isn't involved, he thinks that IP rights are important to resolve quickly.

Yep.

Do you think Cisco is going to have a live appellate issue if it's unhappy with the way the case comes out?

At this point, I think most of the courts have put standing orders in, including the advisory committee to all courts, allowing this type of technology under these conditions. It would seem that it most likely will withstand challenge. Obviously, you're never able to guarantee, but I think most of the courts are saying that this is the way we should proceed.