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After four years of false starts, jury selection in the much-touted and oft-delayed Avant criminal trade secrets trial began Monday. And in the spirit of the nearly decade-old dispute, the day’s hearing started out with a delay. Santa Clara County, Calif., prosecutors and counsel for Avant Corp. and eight co-defendants met in the judge’s chamber for several hours Monday while 109 prospective jurors crowded into the gallery and jury box of Superior Court Judge Conrad Rushing’s courtroom. By 2 p.m. — nearly four hours after they first went into Rushing’s chamber — the attorneys and judge emerged. And the rest of the afternoon the court weeded out potential jurors who claimed that hardships prevent them from serving. In People v. Avant, 21570, prosecutors accuse Fremont, Calif.-based Avant and company employees of stealing hundreds of lines of computer code from fellow software maker Cadence Design Systems Inc. The beleaguered case, which has cycled through two indictments, four years of pretrial hearings and five judges, is positioned to be one of Silicon Valley’s biggest and dirtiest trade secrets disputes. And some IP attorneys are touting it as a true test of California’s criminal trade secrets statutes. “The case will have an impact whatever its outcome,” said James Pooley, a partner with Gray Cary Ware & Freidenrich who teaches trade secrets at University of California, Berkeley’s Boalt Hall School of Law. “It might encourage more companies including those that don’t have the wherewithal to fight their own civil fight.” But even while lawyers cooled their heels Monday as jurors tried to get out of service, a pair of wild cards were at play that could bring the trial to a halt. Rushing is considering a defense motion to set aside the prosecutors’ indictment of Avant. Defense lawyers argue the DA’s office violated the statute of limitations on trade secrets crimes when it issued its 1997 complaint against the company. The judge has several options: toss the defense motion; pare down the scope of the indictment; or throw it out altogether — though Rushing has given no indication he’ll take that step. He has until the jury is sworn in to decide the issue, so jury selection continued Monday. The case also could be stalled another year because of the California Supreme Court’s interest in a defense writ asking the court to recuse the prosecutor. The writ challenges expert assistance provided to the DA by Cadence. Justices will decide whether to hear the case by June 15. Despite the potential for a false start, Rushing has made it clear he wants the trial to begin as planned. Since taking over the case in March, the judge has plowed through a pile of defense motions, a hallmark of the case that drove Rushing’s Avant predecessor to step down. Marcel Poch�, a retired California Court of Appeal justice who was sitting by assignment, withdrew in March after sparring with defense attorney Thomas Nolan about setting a trial date. And like so many other issues in the case, the jury pool itself has been a bone of contention among the lawyers. Prosecutors argue the company embarked on a public relations campaign shortly after the indictment to poison the jury pool. They also protested the company’s hiring of a research firm to conduct a survey of potential jurors. Rushing has commented in court on the public relations campaign, but has taken no action. Barring complications, jury selection in the case should continue for two weeks.

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