Sam B. Hall Jr. U.S. Courthouse in Marshall, Texas/Photo courtesy of Billy Hathorn via Wikimedia Commons

Apple Inc. and Optis Wireless Technology LLC have formally declared war over the safety of patent infringement jury trials in the Eastern District of Texas.

Apple and Wilmer Cutler Pickering Hale and Dorr partner Mark Selwyn told Chief Judge Rodney Gilstrap on Tuesday that it simply isn't safe to have a jury trial next month with lawyers, witnesses and staff from all over the country converging in Marshall, Texas, home of one of the country's busiest patent dockets. Apple submitted a declaration from an epidemiologist on Tuesday that COVID-19 would pose "an extraordinary risk" to trial participants and the surrounding community. It's demanding that the trial be postponed to October.

Optis and Irell & Manella fired back today, accusing Apple of delay tactics and warning that the health outlook will likely be worse, not better, in two months. Optis also accuses Apple of interfering with jurors' rights to sit in judgment.

"Apple has no right to decide for the citizens of the Eastern District when they can exercise their constitution duties," Optis argued in opposition signed by McKool Smith partner Samuel Baxter. "Indeed, the logical conclusion of Apple's argument is voting, which also involves large groups of people congregating together, should also be suspended."

Optis accuses Apple of refusing to pay reasonable royalties for standard-essential LTE patents. The company is also represented by Irell & Manella.

Gilstrap has directed that everyone in court except for examining counsel and witnesses will wear face masks, that surfaces will be regularly disinfected, and that social distancing will be maintained. He said in a June 29 order in another case that COVID-19 isn't as much of a problem in Marshall than in Houston or in Dallas.

Apple submitted a declaration from Robert Haley, chief of the Division of Epidemiology in the Department of Internal Medicine at the University of Texas Southwestern Medical Center in Dallas, saying that COVID-19 is on the rise in Harrison County, and those steps won't be enough to keep everyone safe in the relatively confined Marshall courtrooms.

"Not only would it be challenging to maintain social distance, but a trial, by its very nature, involves a large amount of speaking," Haley states. "Speaking is one of the main ways that COVID-19 is transmitted from person to person, because COVID-19 spreads by aerosols."

He further noted that attorneys, paralegals, witnesses and client representatives would be traveling to Marshall from the San Francisco Bay Area, San Diego, Boston, Denver, Washington, D.C., Waco, Virginia and New Orleans. COVID-19 would pose "an extraordinary risk to those people who would be involved in a trial starting August 3, the surrounding community, and the communities to which the participants would be returning."

Optis says Apple already got one stay of the trial back in March, and has "shown no interest whatsoever" in protecting its side's safety, at one point insisting that an Optis attorney fly to London to defend witness depositions.

Optis also says there is "no factual or scientific basis to conclude that the state of public health in the Eastern District of Texas will be materially better in October than it is today." Indeed, it points out, University of Washington modeling predicts a second wave of infections beginning in the fall.

"Apple hired a doctor to tell the Court to wait to start holding trials until flu seasons starts in the United States," Baxter writes, "and when independent modeling predicts virus infections and deaths will increase."