Thursday, August 6, 2020

COVID prevention rules must outweigh judicial independence as superspreader patent judges are out of control

Few blogs have more judges among their readers than this one, so I wish to clarify something upfront: not only do I acknowledge but I fervently support the concept of judicial independence. About 14 years ago I raised concerns over a lack of independence of the judges of a future unified European patent judiciary (now known as the UPC, back then labeled EPLA). Later I criticized the way the European Patent Office treats the members of its Boards of Appeal (BoA). And I've suggested on a variety of occasions that the judges of the Court of Justice of the EU (CJEU) should be appointed for life (with a reasonable retirement age), not for short terms.

That said, courtrooms must not become lawless zones--especially not when public health concerns are at stake.

Nobody in his right mind would advocate unfettered judicial independence to the extent that a judge or a panel of judges could allow court staff, counsel, party representatives, or spectators to strangulate each other. Accordingly, I just can't see why it should be acceptable for hearings and trials to become coronavirus superspreader events. Actually, strangulation at least wouldn't be infectious.

Depending on the legal framework of a given jurisdiction, executive governments may indeed lack the authority to impose certain coronavirus prevention rules on courts. Wherever that may be the case, lawmakers need to step in.

Looking beyond the immediate effects of maskless hearings and trials, the fact that potential superspreader events take place precisely where the laws should be applied adversely affects many people's willingness to comply with COVID prevention rules elsewhere.

On Tuesday, the Marshall News Messenger reported on the kickoff of the first U.S. patent trial since the start of the COVID-19 pandemic. That's a PanOptis [just a troll] v. Apple litigation in the Eastern District of Texas, and my previous post reported on Judge Rodney Gilstrap's questionable decision to proceed. Far east of the Eastern District, a certain panel of judges of the Munich I Regional Court held a Nokia [almost a troll] v. Daimler trial without initially requiring everyone to wear masks, and without ever enforcing the recommended minimum distance across the entire courtroom (which was done only in the spectators' area, and only an hour and a half into the trial).

Two trials the world doesn't need to go forward in the current situation. Two trials that posed a threat to public health for no good reason. And there'll be more, I'm afraid.

A rule is a rule is a rule, and not a mere recommendation, invitation, or attempt. It's unavailing when judges or the government departments in charge of operating courts point to recommendations, invitations, or attempts to prevent the spread of the virus. Seen in that light, I considered a reply I got from the State Ministry of Justice of the Free State of Bavaria (which operates, inter alia, the Munich I Regional Court) to be tantamount to an executive declaration of powerlessness.

A spokeswoman for the state ministry pointed me to their guidelines on judicial proceedings, according to which a judge presiding over a hearing or trial can require participants to wear masks. If masks are optional in courtrooms, why aren't they in so many other places? In some parts of the world, they're mandatory even on the streets.

The ministry stressed that in light of the overall circumstances and the anticipated number of attendees, the trial took place "in the largest courtroom available [at the time]." The virus doesn't give a damn about a court's best efforts, though. Nor does the virus care about some judges' obsession with patent cases. They do have larger rooms that belong to the state judiciary, plus they could--if all else failed--rent a venue. And, again, patent cases--especially when it's not about disputes between direct competitors--are extremely non-urgent.

The ministry's reply goes on to claim that windows and doors were open "all the time," which is not true. In fact, at 9:46 AM (on July 29, the day of that most recent Nokia v. Daimler trial) I emailed a spokesman for the court just to ascertain that the room at least had electrical ventilation.

Finally, the ministry notes that the plexiglass panes installed on the tables in front of counsel were "customary." Again, the coronavirus couldn't care less about what's "customary." Plexiglass panes come in all sizes, and the ones that were in use on that occasion fell far short of what would be useful. They were next to useless as I'm sure any expert would confirm. Retail stores, gas stations etc. have all been able to obtain far larger plexiglass panes that truly serve their purpose.

Equally unhelpful is the ministry's reference to the fact that the court offered access via videoconferencing. Only a few people made use of that option, and most if not all of them hadn't physically participated in any Nokia v. Daimler trial as far as I recall. So videoconferencing failed to bring down the number of physical attendees.

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