Now Streaming On YouTube: The Federal Circuit

By Andrew Karpan
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Law360 (February 25, 2021, 7:32 PM EST) -- The Federal Circuit announced on Thursday that it would be the latest court to livestream arguments on YouTube, starting with a handful of cases next month that include two high-profile Apple patent fights.

Oral arguments scheduled to take place next month before five appellate court panels will be available online through the court's new YouTube channel, the clerk's office said in a notice. Starting in April, the clerk's office estimates, the Federal Circuit will livestream all oral arguments for as long as the Federal Circuit remains closed to the public amid the ongoing coronavirus pandemic.

"Our March session will be the first time we are using this technology during a live argument. As a result, we decided to pilot this technology for no more than one panel per day while we work out any unexpected issues before we move our audio feed fully to this new medium," Chief Deputy Clerk Jarrett Perlow told Law360 on Thursday.

According to the court's calendar, some of the cases that will be part of that pilot next month include a mobile payment company's infringement lawsuit against Apple and Visa over Apple Pay, as well as another round in Apple's patent war with Qualcomm, which involves one of the latter's touchscreen patents.

Public access to oral arguments in those cases will only be made available through the court's YouTube page, while the rest of the arguments the panel is scheduled to hear next month will remain accessible through the system of telephonic conferences the Federal Circuit established last March and has continued using after the court ruled in May to suspend in-person arguments "until further notice."

In making oral arguments more accessible to the public, the Federal Circuit is following the lead of the U.S. Supreme Court, which began to stream audio from oral arguments in April and which the broadcasting nonprofit C-SPAN has been airing live ever since. In December, a group of 13 federal district courts began to livestream audio from select proceedings in civil cases on the participating courts' designated YouTube pages.

"There's been a lot of benefits, overall, to taking advantage of technology to make courtrooms more accessible to the public and to lawyers and to their clients," Mike Tomasulo, an intellectual property lawyer and a partner at Winston & Strawn LLP, told Law360 on Thursday, noting that high-stakes patent lawsuits have been attracting an avid live audience.

This week, Tomasulo has been among the general public tuning into a live audio feed that U.S. District Judge Alan D. Albright has established in his Western District of Texas courtroom, where a billion-dollar patent fight is taking place between VLSI Technology LLC and Intel Corp.

"It's nice to not have the size of the courtroom be a restriction on who can and can't actually observe the trial," Tomasulo said.

The move to livestream oral arguments at the Federal Circuit is not quite as big of a change as the initial decision to make those arguments remote in the first place, a move that attorneys had initially feared would make their jobs more difficult.

Debbie McComas, a partner at Haynes and Boone LLP, had been among the IP litigators concerned about the challenge of arguing beyond the briefs by phone, but she told Law360 on Thursday that the decision to make those remote hearings more accessible was a good move.

"The livestreaming simply makes it easier to follow contemporaneously with the argument," she said.

--Additional reporting by Justin Wise and Dani Kass. Editing by Nicole Bleier.

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