By Dani Kass

Law360 (June 19, 2020, 6:19 PM EDT ) As the COVID-19 pandemic wages on, more trials are being pushed into August and beyond, and others are gearing up for remote proceedings. Here are some recent intellectual property updates tied to the outbreak that you may have missed.

Trials

The chief judge for the Western District of Texas on Thursday again pushed off when in-person trials can be held in his district. Chief Judge Orlando Garcia's order continued all bench and jury trials scheduled through July 31, and directed presiding judges to pick new dates.

He cited Centers for Disease Control and Prevention guidance and the number of confirmed cases of the virus in both the country and state when making the decision. In particular, he said Texas went from 63 confirmed cases on March 15 to 93,600 on June 16.

In that same district, U.S. District Judge Alan D. Albright on June 15 postponed a jury trial over whether Roku infringed MV3 Partners LLC's streaming media patent to August. The trial was originally scheduled for June 1 and was pushed in May to June 29 before this month's delay.

In Texas' Southern District, U.S. District Judge Andrew S. Hanen on Tuesday scheduled a retrial between Legacy Separators LLC and Halliburton Energy Services Inc. over a gas separator patent. The fight between the companies had gone to trial in March, but as the pandemic picked up, the jury was hung on whether two Halliburton products infringe Legacy's patent, which is what will go to trial on Aug. 24.

A Manhattan-based patent trial between Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC over nighttime urination medication will proceed in July, but the bench trial will be held over video. The drugmakers wrote to the court on Tuesday with terms they've agreed on for the trial, set to start July 6. The parties are torn over whether closing arguments should be in person.

Then in Delaware, Shire ViroPharma Inc. and CSL Behring LLC are fighting over how much of their litigation over genetic disorder treatment patents should get a jury trial, rather than a bench trial or summary judgment treatment, all of which the companies said is complicated by pandemic-caused delays and judicial strain.

Other Litigation

3M Co. has reached another deal in its trademark litigation campaign against companies accused of selling price-gouged N95 masks during the pandemic.

3M moved Thursday to drop a case that accused a Florida company called TAC2 Global LLC of using misleading language in an effort to resell millions of 3M masks to the state's Emergency Operations Center at more than four times their list price. The filing said the two companies had reached a settlement to end the case, but did not include any other details about the agreement.

While not a settlement, the Internet Archive ended a project that aimed to make more digital copies of books available during the pandemic after being sued by four book publishers for copyright infringement. The National Emergency Library was supposed to last through June, but was ended on Tuesday in response to the suit filed by Hachette Book Group Inc., HarperCollins Publishers LLC, John Wiley & Sons Inc. and Penguin Random House LLC.

Then in a new suit June 15, Penske Media Corp. accused Shutterstock Inc. of undermining a contract between the parties through its "cynical and pretextual invocation of the COVID-19 pandemic."

Under the 2015 contract, Shutterstock was able to exclusively license photographs from Variety, Women's Wear Daily and other PMC publications, among other benefits, and Shutterstock would take photographs for the company at events, according to the complaint. But Shutterstock took the cancellation of events during the pandemic to say PMC hadn't kept up its part of the deal, even though there's no contractual obligation to host events, PMC said.

"Shutterstock also contends that the pandemic purportedly rendered 'worthless' its agreement with PMC because live, in person events that Shutterstock intended to photograph under the deal have been cancelled or postponed," the complaint states. "But in making this contention, Shutterstock ignores that, even with the impacts of COVID-19, which are likely temporary, it has earned tremendous benefits under the parties' agreement for the past five years, and that, absent Shutterstock's wrongful termination, Shutterstock would continue to enjoy many of the key benefits under the deal."

Shutterstock general counsel Heidi Garfield called the allegations "meritless" and said they will "vigorously fight this lawsuit."

"Due to the unforeseen pandemic, Penske Media Corporation cannot substantially perform its obligations under the parties' multi-year agreement," Garfield said in a statement. "While we had hoped to address this issue amicably and respectfully between the parties, PMC's escalation of this matter with this lawsuit will give us the opportunity to fairly present the facts and get an equitable resolution."

At the U.S. Patent and Trademark Office

Finally, on June 15, the USPTO announced a new examination program that aims to prioritize certain trademark and service mark applications related to the novel coronavirus. The new program hopes to expedite the review process by an estimated two months.

The USPTO will accept petitions to advance the initial examination of applications for marks used to identify certain medical products and services that help prevent, diagnose, treat or cure COVID-19, and it has agreed to waive application fees.

--Additional reporting by Ryan Davis, Tiffany Hu, Bill Donahue, Cara Salvatore, Jeff Montgomery and Dorothy Atkins. Editing by Jack Karp.

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