The Federal Circuit will remove some cases from its April argument session and will hold other hearings by telephone to minimize the risk of spreading the new coronavirus.
If counsel for both sides are local, the court, for now, will hold in-person arguments as scheduled, according to an announcement from the U.S. Court of Appeals for the Federal Circuit.
“It is good to see the court acting proactively,” patent attorney Matthew J. Dowd of Dowd Scheffel PLLC in Washington said.
“Many practitioners and clients eagerly anticipate oral argument, and they may be disappointed by the court’s decision here,” Dowd, who clerked for former Federal Circuit Judge Paul Michel, said. “But we need to ensure the court’s health, safety, and smooth administration.”
The court subsequently began posting orders in individual cases canceling oral arguments or scheduling them by telephone.
As of 4:00 p.m. EDT Thursday, 23 of the 57 arguments originally scheduled have been canceled and 25 will be conducted by phone.
One of the phone arguments is in a case over whether Uniloc 2017 LLC can keep documents sealed in patent litigation against Apple Inc. The Electronic Frontier Foundation asked the court to make the argument available to the public by livestream or recorded video. The court denied EFF’s motion.
The court will decide cases with canceled arguments on the briefs alone.
The cancellations are “annoying, but not critical,” patent attorney John Dragseth of Fish & Richardson in Minneapolis said.
“Briefs are the most important part of an appeal by far, and oral argument seldom changes the result in a case—even though so many people put so much attention on it,” Dragseth, who clerked for Judge Raymond C. Clevenger III, said.
The court didn’t seem to favor any type of case when deciding when to forgo arguments. About half of the cases for which arguments have been canceled are patent appeals from the patent board and district courts.
“One thing to keep in mind is that the Federal Circuit is the only one to grant oral argument in all represented cases,” Dowd said. “It should not be considered alarming that the Federal Circuit will decide cases on the briefs without oral argument.”
Dowd said it’s “extremely common” not to have oral arguments in the other appeals courts, and it’s the norm in the Third, Fourth, and Eleventh Circuits.
Still, arguing cases on the telephone carries some unique challenges, practitioners say.
“The biggest issue will be that judges, who are not accustomed to being talked over, will need to adjust—because being talked over is simply an inevitable part of telephone conferences,” Dragseth said.
The court issued new guidelines for oral argument in January that specifically warned attorneys against interrupting the judges.
The biggest problem for attorneys arguing hard cases over the phone is that they won’t be able to tell if a judge’s silence is a sign of hostility, Dragseth said.
“You make a lot of on-the-fly decisions, and those decisions are equally affected by the content of questions, the tone of voice, and the judge’s body language,” Dragseth said. He is serving as second chair for an associate from his firm who is arguing a case by telephone during the April session.
Another attorney with a telephone argument scheduled said his firm’s preparations won’t change because the argument isn’t in-person.
“We expect that the judges’ questioning will be just as robust on the phone as it is in person, so our preparations and strategy will be as rigorous as ever,” J. Michael Jakes, a patent litigator who leads Finnegan, Henderson, Farabow, Garrett & Dunner LLP’s appellate section in Washington, said. Jakes clerked for former Federal Circuit Judge Giles Rich.
The court hasn’t said whether the public will be allowed to attend the in-person sessions or listen to the telephone arguments.
The court said it will continue to release same-day audio.