Recent Federal Jury Verdict Demonstrates the Special Difficulties for Plaintiffs in Intellectual Property (IP) cases in the COVID-19 era.

A recent jury verdict in an IP infringement action in the U.S. Federal District Court in Denver, Colorado, clearly illustrated the difficulties and dangers associated with successfully obtaining damages in a jury trial during the present COVID-19 pandemic.

Indeed, the results of the jury verdict were so shocking that “halfway through the trial”, (and lingering well after), Plaintiff’s counsel expressed his “guilty feelings” of having conducted a "pilot" in-person trial with live witnesses and a live jury. 

Last Wednesday (July 29, 2020), in the case of Altigen Communications Inc. v. CTI Communications LLC et al., (1:19-cv-00488, U.S. DC Colorado), the cloistered jury of citizens awarded a communications company only a tiny fraction of the more than $2 million in damages that it sought from one of its former dealers it had accused of unauthorized and infringing sales. While the jury found that CTI and its owner had infringed the Plaintiff’s trademarks, it awarded a mere $3,190 in damages and otherwise rejected Plaintiff’s claims of copyright infringement and violation of Colorado consumer protection laws.

In mid-June, U.S. District Judge R. Brooke Jackson asked the parties whether they would be willing to try the case as one of several "pilot" jury trials being proposed by the judges in the district to evaluate whether and how to safely conduct in-person jury trials during the pandemic. Ultimately, the court imposed numerous safety restrictions, including social distancing, (changed seating for jurors leaving them more distant from the witnesses), masks for all participants and frequent breaks for cleaning of the courtroom during the trial, as well as holding jury deliberations in an adjacent courtroom --- all of which may have detrimentally affected the process, likely causing the jury to discount the significance of the Plaintiff’s IP claims in a time when more pressing issues and “pilot” procedures clearly hindered this unconventional trial.

For example, jury selection took place in the courthouse's large ceremonial courtroom, so that 22 randomly selected prospective jurors could be socially distanced during the process. The trial also involved numerous safety measures, including seating jurors 6 feet apart in the courtroom gallery and requiring masks for everyone, including jurors, witnesses and attorneys. Both sides’ counsel complained of the heat and other discomfort caused from wearing a mask throughout the trial. More importantly, as defense counsel wisely pointed out, the jury may not have been persuaded by the witnesses "because when you have credibility concerns you want to see facial expressions."

From this practitioner's standpoint, unlike PI (personal injury) cases where the Plaintiff typically has visible injuries and tangible damages, in most IP cases it can be quite difficult to demonstrate to a jury the value of intangible assets (such as trademarks and copyrights) or to easily establish proof of the defendant's gains and profits from infringement nor the actual business costs and losses resulting from (consumer confusion, advertising injury or dilution), or related to infringement.

In the COVID era, while we are all being encouraged to shelter in place and avoid public spaces, any juror who is forced to personally respond to a summons by attending a trial is likely already somewhat apprehensive and may feel a conflict between their own personal and civic responsibilities. Moreover, during a time when jurors are especially stressed out about the process, and are simply unable to identify (or identify with), the witnesses and counsel's face and demeanor, it becomes even harder for juries to sympathize with their causes. As such, as the Plaintiff in Altigen just learned, to successfully bring an IP case before a live jury, under the "new normal", one must be amply prepared to show a human "face" to their case, and to express not only why the plaintiff has been harmed to the extent to justify an award of monetary damages, but also to show why this civil trial matter could not be resolved, postponed or otherwise more simply be tried before a sitting District Court Judge.

COVID LITIGATOR'S TIP: If you are planning to begin a jury trial (or a deposition), invest in a CLEAR MASK for yourself and your witnesses!

POST SCRIPT: ?? JUDGE ORDERS PLAINTIFF TO REIMBURSE THE LIABLE INFRINGING DEFENDANTS - SUBSTANTIAL ATTORNEYS' FEES, WHICH EXPONENTIALLY EXCEED PLAINTIFF'S PALTRY VERDICT FOR ? DAMAGES??? ??

????? ?? An even more DRACONIAN result becomes an immediate and enormous burden for the Plaintiff (Altigen), and its IP lawyer, ???? BUT otherwise provides an even more INVALUABLE LESSON for us all ??????????