MV3 v Roku Trial The Penultimate Day

As this post’s title gives away, today was not, after all, the final day of the MV3-Roku trial, but tomorrow will be. Closing arguments will begin at 8AM.

In terms of how we got there, here are the highlights:

Courthouse safety procedures: The Court deployed a more extensive array of pandemic-related precautionary measures than last week. Specifically:

  1. All visitors to the courthouse were subject to a forehead temperature screen at the main entrance.
  2. Outside the courtroom, all trial attendees were directed to fill out a sign-in sheet for contact-tracing purposes, and to execute and submit an attestation form to the effect that we were symptom-free and have not associated with anyone infected with or exposed to the coronavirus.
  3. Finally, seating capacity in the courtroom was more restricted than last week, with many seats in the gallery taped off. There was discussion of an overflow broadcast area elsewhere inside the courthouse, but that was not yet set up as of today.

Remote testimony: There were actually three witnesses remaining in Roku’s defense case who went on today—one fact witness and two experts. Testimony of the second witness, Roku’s survey expert, was successfully presented via Zoom, with only minor technological hiccups (a brief audio interruption remedied by repeating the question posed). Including both direct and cross-examination, the examination lasted approximately one hour in total. The witness presentation included a picture-in-picture overlay so that the jury could view the witness’s slide deck while also observing her testimony.

Before the witness’s examination, the Court directed that the jury was to “treat this witness as any other witness” and that the witness’s Zoom appearance “should not affect in any way” the jury’s credibility determinations. The Court declined to instruct the jury as to the reason for the witness’s remote appearance, but allowed counsel to address the issue on direct examination.

Rebuttal case: The Court allowed each side a maximum of 15 minutes total in connection with MV3’s rebuttal examination of its technical expert—which proceeded otherwise without incident.

Jury instructions and verdict form: After the lunch break, the Court held a brief argument in which the parties presented their respective objections to selected jury instructions. With respect to certain damages-related instructions, the Court made its determinations during the afternoon breaks, following the conclusion of Roku’s damages expert’s examination, so as to rule based on a full record of the issues that the parties intended to submit to the jury. In addition to instructions relating to the merits of the case, the Court ruled that it would deliver a curative instruction relating to plaintiff MV3’s status as a non-practicing entity, given certain cross-examination questioning from earlier in the trial.

As to the verdict form, among other rulings, for certain accused products the Court held final determinations in reserve until after a showing by counsel of evidence put on during trial as to those products (including overruling an objection as to including a product that was allegedly outside the scope of the pretrial order, given that the trial testimony in question came in without objection). The court also declined to include an instruction requested by Roku regarding the effect of finding an independent claim not infringed vis-à-vis the related dependent claims—but advised counsel that was an appropriate topic to cover during summations.

The Court delivered the jury charge at the end of the day. Judge Albright directed that a written copy of the instructions, including the Court’s claim construction, would be distributed to the jury for purposes of deliberations. The Court reserved final delivery of the verdict form for the morning, following resolution of a handful of outstanding issues addressed after the jury’s dismissal.

In deference to the jury given the late hour, the Court first read the charge and dismissed the jury, and then the parties formally preserved their objections for appeal to the instructions and verdict form on the record. (The parties first confirmed they had no objection to taking events in that sequence.)

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Tomorrow should bring the exciting conclusion! As noted above, summations will commence at 8AM, and each side will have 30 minutes, to be followed by the jury’s deliberations.

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