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MV3 v Roku - Waiting on the Jury...
MV3 v Roku - Waiting on the Jury...

The presentation of evidence in Judge Albright's first patent jury trial has officially concluded and the jury is deliberating. While we await the verdict, here are some highlights and takeaways from the last week at trial.

Final Pretrial Matters:

On the morning trial began, Judge Albright took up some final pretrial matters before bringing in the jury. This included clarification on the effect of certain motions in limine on the content of the parties' opening statements.

Exhibit Admissibility:

The parties agreed to pre-admit certain exhibits. These exhibits could be referred to throughout the trial without any formal predicate or admission of the exhibit. Judge Albright agreed with the parties' proposal that they be permitted to read pre-admitted exhibits into the record each morning.

Objections Outside the Presence of the Jury:

Due to COVID, the Court explained that there would be no bench conferences. Thus, to address an objection outside the presence of the jury, there must be a break in the proceedings to take up argument. As such, the parties were admonished to only lodge such objections if the issue was very important. As additional incentive to limit bench conferences to necessary objections, any time spent during this bench conference would be deducted from the total time of the party who lost the objection.

Preliminary Jury Instructions:

Just after 9:00am on day 1, the seven-person jury, made up of 5 women and 2 men, was brought in to the courtroom. Judge Albright gave approximately 45 minutes of initial jury instructions including: (1) general background on patents, the rights given to a patent owner, and the patent application process; (2) the components of a patent including an explanation of the specification and claims within a patent; (3) definition of infringement including the various ways infringement can be shown; (4) brief explanation of MV3's infringement contentions ; (5) brief explanation of the accused products; and (6) general overview of trial procedure.

Unexpected Circumstances:

While opening statements and the first witness examinations were largely unremarkable, day two brought its own set of challenges in the form of a Waco-wide power outage. While the power was restored by late morning, the technology in Courtroom 1, the only Courtroom outfitted with the proper COVID protections (including a plexiglass shield around the witness stand), was inoperable at that time. As such, Tuesday was essentially lost while Courtroom 2 was outfitted to continue proceedings on Wednesday. While the trial was expected to last one week, the combination of the technology problems and federal holiday on October 12, extended the trial halfway into the second week.


Initially, Roku did not request that the Courtroom be cleared when publishing exhibits containing confidential material, but rather that the confidential document not be published to the public on the screens in the courtroom. However, the change in Courtroom location, and thus technological capacity, and content of MV3's expert testimony necessitated a short sealing of the courtroom while the confidential information was discussed.


Although Roku did not pursue its invalidity case at trial, Judge Albright permitted MV3 to put on a rebuttal case, consistent with the procedure out of EDTX.

Charge conference:

The charge conference was conducted on Friday afternoon in chambers. Yesterday, the parties were given an opportunity to argue their objections on the record and the charge was read to the jury yesterday afternoon. The jury was dismissed and then the parties were permitted to formally object to the instructions and verdict form on the record.

Closing arguments began promptly at 8:00am this morning and the jury is now deliberating with all of the evidence. We will wait with bated breath for the verdict and we will be sure to post the verdict as soon as it is delivered!


With over 50 years of combined experience with federal court practice in the Western District, our team boasts former federal clerks and outstanding litigators with unrivaled experience in local federal litigation. Our contributors are all located in the Waco office of Naman, Howell, Smith & Lee. With an office just blocks from the Waco courthouse, we have our finger on the pulse of the emerging patent litigation practice in the Waco Division of the Western District, and we want to share that expertise with you.

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