New Tactic: Patent Jury Told COVID-19 Is Reason for Not Finding Liability

Saul Ewing Arnstein & Lehr LLP
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Saul Ewing Arnstein & Lehr LLP

The cornonavirus  (COVID-19) is also affecting the patent world—at least if you were a juror in Pacific Biosciences of California Inc. v. Oxford Nanopore Technologies Inc. in the District Court of Delaware this week.  For seven days, the jury heard testimony concerning Oxford Nanopore Technologies Inc. (ONT) supposed infringement of four Pacific Biosciences of California Inc. (PacBio) patents directed to a DNA sequencing system.

On Wednesday, March 18, while the jury ultimately found that ONT infringed three of the four patents, it also held each of the asserted patents invalid.  Thus, ONT was not liable.  The rub is that it appears ONT’s counsel may have used the current COVID-19 situation to sway the jury implying that liability for ONT may somehow block efforts to remediate the current pandemic.  PacBio’s CEO expressed disappointment: "We were especially dismayed at ONT’s brazen attempts during trial…to improperly sway the jury with references to…the current coronavirus pandemic by incorrectly suggesting that if the jury voted in favor of Pacific Biosciences it would be impeding critical efforts to combat the COVID-19 outbreak."

As this case was filed years before this current outbreak, there could be a question of just how applicable the COVID-19 outbreak is to the current technology or how important ONT is to remediation of the outbreak efforts.  One would expect that this will be an issue of prejudice for PacBio to raise in its post-trial briefing.

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