Tuesday, December 15, 2020

In-person patent trials are a no-go in the Western hemisphere for at least several more months--other than exceptional cases of competitive harm

The Western part of the world is in the situation in which it is these days--with renewed, hard lockdowns--because covidiots come in all shapes, forms, sizes, and colors. One of them will pay the price for his mendacity and irresponsibility in this context next month when he'll have to move out of a white building regardless of his achivements in several other areas, while some others wear black robes and regrettably can't be voted out no matter how much they'd deserve it.

The next few months--the coldest of the year--are the worst time ever to conduct in-person trials. Now, I fully understand that the judiciary can't just freeze everything for an extended period of time. There are matters, particularly criminals trials, habeas corpus etc., that can't wait. All that one can do in those cases is to impose a requirement to wear masks, to enforce a certain minimum distance, and to ensure sufficient ventilation.

I obviously wouldn't deny that there are civil lawsuits with an objective sense of urgency. There may be time-sensitive issues related to employment or tenancy relationships, for instance.

But patent cases that require swift adjudication are few and far between. Very few and very far, that is.

Practically, the standard for holding any in-person patent trial in the coming months should no less--and ideally even more--exacting than the one for a preliminary injunction: irreparable harm, inadequacy of monetary relief, balance of hardships, and public interest considerations.

If you had a two-horse race in a given market and one of the two key players willfully infringes on its rival's intellectual property in differentiating features that truly drive demand, then there may be a pressing need to reach--and enforce--a decision ASAP. But how often is that the case? Looking at the RPX Daily Litigation Alert, or at the lists of patent trials held in German courts, one can easily see that most patent cases are brought by non-competitors. That category of plaintiffs comprises patent assertoipn entities that never made a product; companies that haven't seriously built products in a very long time; and notorious patent abusers like Nokia and Ericsson who failed in certain markets but try to extract excessive royalties, partly by bringing their own cases and partly by feeding hordes of privateers.

There are differences between jurisdictions in how much leeway judges have under these circumstances. Federal judges in the U.S. can simply hold Zoom hearings. I get the impression that Judge Yvonne Gonzalez Rogers, who presides over a bunch of antitrust actions targeting Apple's App Store terms and policies in the Northern District of California, takes COVID-19 very seriously. A superspreader event in her courtroom is not going to happen. Obviously, some lawyers are more comfortable than others to deliver oral argument via a webcam. For instance, Gibson Dunn's Ted Boutrous, who represents Apple against Epic Games and some other plaintiffs, is a frequent TV interviewee, and you can see how comfortable he is in front of a camera. At a hearing this fall he said that "Epic can free Fortnite" (by complying with Apple's rules), and the way he made that point was like he was speaking to a nationwide audience on prime time TV.

While Germany generally has managed to respond more successfully to the coronavirus crisis than the U.S., the German patent litigation system is largely a disaster and a disgrace, and various patent judges and some patent litigators in that country are less classy in robes than their average U.S. counterparts would be in a swimsuit.

What I do appreciate, as I do talk to various German patent litigators from time to time, is that they much prefer to deliver oral argument in person. One of them told me that when a matter is really important to his client, he absolutely wants to be in the same room as the judges, he wants to see all of their mimics and gestures, and he wants them to look him in the eye when they state their views. Some of that isn't possible via Zoom, and some of it is compromised.

But does that preference mean it's responsible to risk superspreader events for totally non-urgent cases?

The trial judges in Germany claim that plaintiffs bring their cases in their jurisdiction because of their great understanding of patent cases and their efficient case management. In reality, cases get filed their because of the combination of a large market, near-automatic injunctions (which won't realistically change with the ongoing reform process that has already been derailed as far as I can see), and bifurcation (meaning you get leverage out of patents that shouldn't have been granted in the first place). And speed, but it's speed that comes at the expense of a proper administration of justice.

The decisions that German patent trial courts hand down are often fundamentally flawed. At times they border on the absurd. And in a few cases they're an absolute insult to human intelligence, sometimes forcing appeals courts to toss a lower court's decision in a way that would be humiliating to the judges below if only they cared (they do not). It's not that the responsible judges are dumb. They aren't nowhere near as competent as they think, and especially when it comes to technical matters I've heard things in those courtrooms that would make computer-savvy 12-year-olds ashamed. But the issue is mostly one of integrity, not intelligence.

For the sake of their careers--with posts on the future Unified Patent Court being far more lucrative and somewhat more prestigious--, some of those judges are willing to do any favor to plaintiffs for the sake of "forum selling." And a very few of them, which is not unique to Germany but particularly common there, would even let people die from COVID-19, or suffer the consequences of Long COVID, just so they can add a few more patent cases to their resumes.

The current period is an extremely critical one. There can be no more doubt by now that cold, dry air makes it easier for the virus to spread, and it leads people to spend more time inside buildings and on public transport vehicles. At the same time, there is hope, mostly because of the first approvals of vaccines, but there may also be more effective therapies soon.

There are caveats. Will the adverse effects of those vaccines prove too bad over time? Will the vaccines slow down the spread of the virus, or will they merely (which is any vaccine's primary purpose, though) protect the vaccinated, resulting in more asymptomatic (yet contagious) infections? Will the number of "anti-vaxxers" be so high that the problem can't be solved that way? Will the virus mutate (just today I read about a new SARS-CoV-2 variant that has been identified in the UK), possibly requiring modifications to any vaccines? There's no guarantee. But there are reasons to not only hope but also believe that the problem may be much less bad by next summer, and possibly marginalized in a year or so from today.

Every infection that gets avoided now is an infection that may effectively have been avoided forever.

Counsel, jurors and courtroom watchers should not be exposed to any unnecessary risks.

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