Fed. Circ. To Air Live Audio Of Oral Arguments Amid COVID-19

By Tiffany Hu
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Law360 (April 1, 2020, 8:10 PM EDT) -- The Federal Circuit on Wednesday announced that it will be providing live audio of all oral arguments scheduled for the latest court session, citing the "extraordinary circumstances" surrounding the COVID-19 pandemic.

Journalists and the general public can tune into oral arguments for the April 2020 court session, which will be held over the phone, the appeals court said. Recordings will also be available after the arguments end, according to its notice.

"By 9 a.m. (EDT) the morning of each day of argument, the clerk's office will post on its website dial-in numbers that members of the media and the public can use to access the live audio of each panel scheduled for argument that day," the notice states. "Members of the media and the public can begin connecting to an individual conference line."

Some of the oral arguments scheduled for next week include SolarWorld Americas Inc.'s appeal of a U.S. Court of International Trade decision backing the methodology used by the U.S. Department of Commerce for calculating tariffs on solar products, Pfizer's appeal of a pair of Patent Trial and Appeal Board rulings that refused to invalidate purifying antibodies patents owned by a Hoffmann-La Roche Ltd. unit, among others.

The Federal Circuit's announcement follows its decision last month to suspend in-person hearings over concerns about the pandemic. The court had canceled numerous oral arguments slated for April and ordered others to be conducted over the phone.

The appeals court had initially balked at completely suspending in-person hearings but reversed course on March 18 in light of "current public health guidance and efforts to continue to minimize community transmission," it said.

The National Courts Building in Washington, D.C., where the Federal Circuit and the U.S. Court of Federal Claims are housed, has also restricted public access to stop the spread of the novel coronavirus.

Attorneys recently told Law360 that they couldn't remember a previous instance of the Federal Circuit holding arguments over the phone. Phone hearings are commonplace in many district court cases, but they are often used for status conferences and other lower-level matters, rather than for dispositive motions, and they only involve one judge.

An appellate argument by phone, before a panel of three judges, is not something most patent attorneys have experienced.

For attorneys who are used to reading the judges' facial expressions and body language when presenting arguments, switching from an in-person hearing to a phone call will be a challenging adjustment, Yar Chaikovsky of Paul Hastings LLP said.

"The reality is, we need to get accustomed to it," he said. "This may not be something we like or our clients like, but the circumstances call for it and we have to get used to it."

Others, like Aziz Burgy of Axinn Veltrop & Harkrider LLP, noted that district courts often have hearings on procedural motions over the phone. "So I don't see why attorneys couldn't be as effective arguing over the phone," he said.

--Additional reporting by Ryan Davis and Dani Kass. Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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