In a February 17, 2021 Order, Chief Judge Pallmeyer set out a COVID testing protocol to allow for safe in-person proceedings, in particular jury trials. The order requires the following:

  • Court employees working in the court facilities will be tested for COVID no more than twice per week using saliva tests. The results will be provided only to the tested employee, who will be obligated to self report any positive test;
  • Jurors and potential jurors will also be tested twice per week using a saliva test; and
  • Any person involved in an in-person hearing or trial exceeding two days will also have to submit to testing.

This suggests that the Court will be allowing for jury trials and, perhaps at least in some cases, in-person hearings going forward.

In response to recent questions about a potential breach of the CM/ECF system, the Northern District issued a General Order setting out a definition of Highly Sensitive Documents (HSD). The General Order states that “[m]ost sealed filings in civil cases do not constitute HSDs” and specifically excludes “[c]ommercial [and] proprietary information” from HSD classification. Documents will not be classified as HSD solely because they include personal identifying or financial information.  In addition to various criminal filings, the following categories of material can be classified as HSD:

  • “Materials whose disclosure could jeopardize national security or place human life or safety at risk;” and
  • “Materials whose disclosure to a foreign power or its agents (as defined by 50 U.S.C. § 1801) would be unlawful under U.S. law or would substantially assist a foreign power or its agents in the development of that foreign power’s competing commercial products or products with military applications.”

HSD are required to be filed with the Clerk in paper form. In order to have a document classified as HSD, a party must seek leave to file as HSD, including a Rule 11 certification that the document qualifies as an HSD. The order granting the motion must identify the persons allowed access to the documents and instructions for handling of the documents after the case concludes.

Two copies of any HSDs are to be filed in separate, sealed envelopes “conspicuously labelled as HSD Sealed Material,” the case caption, and identifying the attorney’s or party’s name and address, including email. A copy of the order authorizing the HSD filing must also be included with any document presented for filing as an HSD. 3.

Parties may seek to reclassify documents already filed as confidential as HSD by motion pursuant to Local Rules 5.8 (filing motions under seal) and 26.2 (sealed documents).

On December 3, 2020, from 3:00 – 5:30 pm CT the IP Law Symposium Committee, including Co-Chairs Jim Muraff of McDonald Hopkins LLC and Matt Marrone of McAndrews, Held & Malloy, Ltd., and Vice Chair Viren Soni of the CME Group, are hosting a series of fireside chats and panels where you will hear directly from Judges across the country about current patent and trademark litigation topics, trends, and insights.  The chats will be with:

  • TTAB: Judge Linda Kuczma
  • PTAB: Chief Judge Boalick
  • Federal district court: Chief Judge Pallmeyer (N.D. Ill.); Judge Albright (W.D. Tex.); and Judge Kendall (N.D. Ill.)

The event is free for IPLAC Members and $30 for Non-Members.  Click here to register for the event.  I look forward to seeing you there.

Chief Judge Pallmeyer issued her seventh amended COVID General Order earlier today, October 29, 2020. As with the last order, there are no additional blanket case extensions. The General Order basically extends provisions limiting courthouse access to what is necessary. But it also suspends jury trials — both civil and criminal — from November 9, 2020 through January 26, 2021. Bench trials are allowed, but no jury trials will be held in the Northern District until late January, at the earliest.

Specifically, the General Order also requires:

  • No Local Rule 5.2(f) Courtesy Copies — Absent case-specific requests, Local Rule 5.2(f) requiring paper courtesy copies of many filings is suspended. In fact, “[n]o courtesy copies may be submitted . . . unless the parties receive case-specific requests for copies from the presiding judge.”
  • No Local Rule 5.3(b) Presentment — Motions may not be noticed for in-person hearings. Presiding judges will notify the parties if a hearing, either in-person or by electronic means, is necessary. This rule, extending across the COVID General Orders, may have the biggest long-term impact on Northern District practice, as it has long been a court governed by regular in-person hearings for nearly every motion.
  • Pro Se Email Filing Allowed — The Court is allowing pro se filing by email to the Court Clerk, so long as the document is a PDF, is signed and the email contains certain identifyin information.
  • No Public Gatherings — Neither federal courthouse is allowing public gatherings, unless authorized by Chief Judge Pallmeyer.

The General Order will be vacated, amended or extended no later than January 26, 2021.

ABC Corp. I v. Partnership & Unincorporated Assocs. Identified on Sched. A, No. 1:20 cv 4806, Slip Op. (N.D. Ill. Sept. 4, 2020) (Seeger, J.).

Having previously issued a show cause order, Judge Seeger granted plaintiff leave to file an amended complaint in this patent dispute naming the plaintiff, or the case would be dismissed for improperly filing as an anonymous plaintiff.

While Fed. R. Civ. Pro. 10(a) allows a plaintiff to file anonymously in exceptional circumstances and with leave of court, those circumstances include protecting state secrets, trade secrets or victims of abuse, not patent infringement. Plaintiff’s theory “seemed to be” that filing in its name would alert defendants and allow them to create new fictitious seller names or get new Amazon Standard Identification Numbers. But the Court noted that defendants could take those same actions at any point in the case, for example after a Temporary Restraining Order was issued. A patent suit alone is not enough to justify plaintiff filing anonymously.

I have watched an increasing number of IP suits filed by anonymous plaintiffs in the Northern District and have been waiting to see a decision like this, acknowledging that a plaintiff filing anonymously required unique circumstances, beyond the risk of defendant avoiding judgment by altering its identity.

Chief Judge Pallmeyer opted for an abbreviated format for her sixth amended COVID General Order issued, Friday, September 4. That is presumably because the order is simpler than it was at the outset of the pandemic. There are no blanket case extension. The General Order basically extends provisions limiting courthouse access to wha tis necessary. Specifically, the General Order requires:

  • No Local Rule 5.2(f) Courtesy Copies — Absent case-specific requests, Local Rule 5.2(f) requiring paper courtesy copies of many filings is suspended. In fact, “[n]o courtesy copies may be submitted . . . unless the parties receive case-specific requests for copies from the presiding judge.”
  • No Local Rule 5.3(b) Presentment — Motions may not be noticed for in-person hearings. Presiding judges will notify the parties if a hearing, either in-person or by electronic means, is necessary. This rule, extending across the COVID General Orders, may have the biggest long-term impact on Northern District practice, as it has long been a court governed by regular in-person hearings for nearly every motion.
  • Pro Se Email Filing Allowed — The Court is allowing pro se filing by email to the Court Clerk, so long as the document is a PDF, is signed and the email contains certain identifyin information.
  • No Public Gatherings — Neither federal courthouse is allowing public gatherings, unless authorized by Chief Judge Pallmeyer.

The General Order will be vacated, amended or extended no later than November 16, 2020.

The UIC John Marshall Law School’s Center for Intellectual Property, Information & Privacy is hosting a virtual seminar along with the Institute for Intellectual Property & Social Justice on Friday, September 11, 2020 from 7:40am – 3:00pm CT focused on IP issues in the midst of the pandemic. The speaker list is impressive, headlined by the Federal Circuit’s Judge Linn and Judge Michel (Ret.). The conference promises to be unique and thought provoking. You can register here.

Judges Wood & Pallmeyer issued a joint order requiring that everyone in public spaces of the Northern District and Seventh Circuit wear face masks or coverings. The order includes all public spaces including the lobby, elevators, restrooms, public corridors and also courtrooms, absent direction otherwise from the presiding judge. The mask must cover both the nose and the mouth. The only exception to this order is for people with documentation stating that they are unable to wear a mask or face covering for medical reasons.

Yesterday, Tuesday, May 26, Chief Judge Pallmeyer entered a Fourth Amended General Order updating the first three (which extended all civil deadlines 28 days, an additional 21 days and 28 more days, for 77 total days) and further addressing the “Coronavirus COVID-19 public Emergency.” The fourth amended order did not grant any additional blanket extensions. The Court did suspend jury trials until after August 3, 2020. And, absent contrary directions from a specific judge, suspended courtesy copy requirements through July 15, 2020. Judges are free to hold hearings, bench trials and settlement conferences, although they should only be in-person to the extent necessary.