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COVID-19 has taken an unprecedented toll on the United States and the world at large. It has impacted nearly every facet of both professional and personal life and, with that,...
COVID-19 has taken an unprecedented toll on the United States
and the world at large. It has impacted nearly every facet of both
professional and personal life and, with that, the patent
landscape, too—especially as it pertains to the interplay
between in-person events (trials, hearings, depositions and the
like) and the need for "social distancing."
Most venues are walking the delicate balance of trying to
maintain their dockets and move cases along, while at the same time
deal with the ever-changing "new normal."
Among significant patent venues that have suspended all
in-person hearings and trials are the United States Patent and
Trademark Office, the International Trade Commission, the Central
District of California, the Northern District of California, the
Western District of Texas, the District of Delaware and the Court
of Appeals for the Federal Circuit. Most of these venues are also
liberally granting parties' requests for extensions of case
deadlines, due to the impact of COVID-19 on parties and their
attorneys.
Perhaps the most significant outlier is the Eastern District of
Texas, which has not issued a blanket order suspending in-person
hearings or trials, but rather has issued an order with
"targeted visitor restrictions" (e.g., those who
are sick, have traveled to certain countries, or are a doctor). The
lone exception in the district is the closure of the Plano
courthouse until April 1 due to an individual with a presumptive
positive diagnosis for the COVID-19 coronavirus visiting the
courthouse on March 18.
There are also differing views of extension requests among
judges in the Eastern District of Texas. For example, on the one
hand, Judge Schroeder granted an unopposed request for a three-week
extension of case deadlines, where the defendant, witnesses and
counsel were from Seattle and some of the individuals had been in
contact with individuals who may have been exposed to COVID-19.
On the other hand, Judge Gilstrap denied an unopposed joint
request for a 30-day continuance, where one of the parties was
based in Seattle and facing a similar COVID-19 fallout. In denying
the request, Judge Gilstrap reasoned:
It is worth noting, however, that there are no current
official travel restrictions or advisories from government health
agencies such as the Center for Disease Control and Prevention.
While the Court is sensitive to the Parties['] concerns and the
hazards associated with the Coronavirus, the Court is not inclined
to implement delays or grant continuances unless a party can put
forward specific concerns backed by firm restrictions from a
governmental/public health level or actual exposure. The Court is
confident that the attorneys for the Parties can craft viable
solutions that allows the case to continue while minimizing the
potential health risks. Both Parties are well-versed in the
technological innovations that would remotely produce high-quality
witness depositions. Having considered the Motion and striving to
balance its decision between the competing parameters of prudence
and panic, the Court is of the opinion that the Motion should be
and hereby is DENIED.
Below is a further summary of how major patent forums are
handling COVID-19:
Venue
How the Venue is Addressing COVID-19
Patent Office
All USPTO offices are closed to the
public until further notice.
Until further notice, examiner and
examining attorney interviews, Patent Trial and Appeal Board oral
hearings and other similar in-person meetings scheduled to take
place at USPTO offices on or after March 13 will be conducted
remotely by video or telephone.
Unless otherwise notified, USPTO
operations will continue without interruption.
Patent application deadlines and
other deadlines are not extended, but the USPTO considers the
effects of coronavirus to be an "extraordinary situation"
within the meaning of 37 CFR 1.183 for affected patent applicants,
patentees and reexamination parties. Therefore, the USPTO is
waiving petition fees in certain situations for customers impacted
by the coronavirus.
International Trade Commission
On March 12, the Commission postponed
all hearings for at least 60 days. This has resulted in certain
judges suspending hearings "until further notice."
The Secretary's Office will
accept only electronic filings during this time. Filings must be
made through the Commission's Electronic Document Information
System (EDIS). No in-person paper-based filings or paper copies of
any electronic filings will be accepted until further notice.
Limited access will be granted only
to visitors who have a statutory matter. All visitors are
restricted to the first floor of the USITC building until further
notice.
Central District of California
Jury selection and jury trials are
suspended until at least April 13, and possibly longer.
All deadlines will remain in place
unless otherwise ordered by the presiding Judge.
Northern District of California
Jury selection and jury trials are
suspended until at least May 1, and possibly longer.
All deadlines will remain in place
unless otherwise ordered by the presiding Judge.
All matters will be decided on the
papers, or if the assigned judge believes a hearing is necessary,
the hearing will be by telephone or videoconference.
District of Delaware
All jury selections and jury trials
scheduled to begin on or before April 30 are continued pending
further notice.
All deadlines will remain in place
unless otherwise ordered by the presiding Judge.
Western District of Texas
All jury selections and jury trials
scheduled to begin on or before May 1 are postponed to a date reset
by the presiding Judge.
All deadlines will remain in place
unless otherwise ordered by the presiding Judge.
Individual judges may continue to
hold in-person hearings and conferences, but counsel may seek
relief from those matters by appropriate motions. The parties are
encouraged to seek to participate in hearings and conferences by
telephone or video.
Eastern District of Texas
Restricted access to certain
visitors.
No district-wide rule regarding
in-person hearings or trials, but rather currently treating them on
a case-by-case basis by the presiding Judge.
Plano courthouse closed until April
1, and all in-person appearances in that court are suspended until
further notice, due an individual with a presumptive positive
diagnosis for the COVID-19 coronavirus visiting the
courthouse.
Federal Circuit
All April 2020 arguments are being
held by telephonic conference.
Court closed to the public.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
