Judge declares mistrial in patent case, suspends jury due to COVID-19

The coronavirus pandemic has shuttered the only ongoing jury trial in the Southern District of California after just a few days, and there is no telling when attorneys will be given a second go to battle their patent dispute.

U.S. District Judge Cathy A. Bencivengo was presiding over a security software patent infringement case that entered its third day of proceedings when she declared a mistrial on Monday and sent the jury home. Finjan Inc. v. ESET LLC et al. 3:17-cv-00183.

"With agreement of counsel, the court deems a mistrial based upon the current state of extraordinary circumstances due to the coronavirus pandemic," the judge's order read. "The court will contact counsel upon the conclusion of the national state of emergency for further scheduling of court proceedings. All previously pending dates of trial are hereby vacated."

ESET's defense counsel, Nicola A. Pisano, a partner at Eversheds Sutherland LLP, said Tuesday while none of the court staff, jurors or counsel showed any signs or symptoms of the disease or distress, Bencivengo made the right call.

"The court was sensitive and cognizant of the fact that we had the only ongoing trial in the Southern District," Pisano said.

Chief U.S. District Judge Larry A. Burns on Friday had already issued restrictions for visitors that traveled from countries issued a Level Two or Level Three travel health notice by the Centers for Disease Control and Prevention.

According to Pisano, Bencivengo offered to do a bench trial, which Finjan's lawyers declined.

"We were disappointed obviously, because the trial was moving along quite nicely, and we wanted to get to the conclusion, but there are obviously bigger concerns, especially regarding the health and safety of our jurors," Pisano said. "We look forward to vindicating ESET's positions when court resumes as normal."

Finjan is an Israeli-based corporation that develops security technologies detecting online security threats by identifying suspicious patterns all over the internet. They claim several patents covering network security technology around the globe, including the United States.

Finjan is represented by Paul J. Andre and Lisa Kobialka of Kramer Levin Naftalis & Frankel LLP. None of the plaintiffs' counsel could be reached for comment Tuesday.

ESET is based in San Diego and also specializes in developing and selling multi-layered antivirus security products that protects desktop devices, email systems from malware, phishing attacks and other cybsecurity threats.

In 2016, Finjan sued, accusing ESET of willfully infringing on several patents, and sought no less than $44 million in damages. ESET is accused of utilizing Finjan's patented technology when it manufactured and sold security system products and methods in its home, small business and office protection packages.

ESET claims the majority of Finjan's patents-in-suit expired by 2017, according to court documents.

ESET also claims Finjan misled the U.S. Patent and Trademark Office by concealing the fact that one of Finjan's patents-in-suit, the '621 patent, was found to be invalid by a Delaware federal jury in 2012. The '621 patent was a malicious mobile code runtime monitoring system and method.

The U.S. Court of Appeals for the Federal Circuit upheld the Delaware court's finding; Finjan filed another patent application, which was issued Nov. 17, 2015 as the '621 patent.

ESET claims Finjan knowingly filed an application for another patent that was substantially identical to one that was already found invalid.