Fed. Circ. Will Return To In-Person Arguments In August

By Andrew Karpan
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Law360 (June 22, 2021, 5:00 PM EDT) -- After almost 15 months of holding arguments remotely, the Federal Circuit plans to open its doors to lawyers again in late August, but will test out new in-person COVID-19 protocols in two cases next month, including Kite Pharma Inc.'s high-profile appeal of a $1.2 billion patent infringement judgment against it.

U.S. Chief Circuit Judge Kimberly A. Moore issued an order Tuesday directing the court's clerk to "resume scheduling in-person arguments beginning with the September 2021 session," but left room for cases before then to "proceed as notified." The court's September session begins Aug. 30.

The Federal Circuit selected two cases scheduled for next month to pilot its new procedures for holding in-person oral arguments: Shure Inc.'s appeal of a preliminary injunction in its patent fight with rival ClearOne, and Kite Pharma's efforts to get the court to wipe out a $1.2 billion judgment for Juno Therapeutics Inc. in a patent case over Kite's cancer treatment Yescarta.

Chief Judge Moore rescinded some of the orders her predecessor, Circuit Judge Sharon Prost, signed last March, in the early days of the pandemic. The court, whose judges hear oral arguments during the first or second week of every month, started hearing them on the telephone since its session last April.

"The orders entered today are to allow for a pilot/test run of our new protocols during the July session," Chief Deputy Clerk Jarrett Perlow told Law360 in an email Tuesday. Perlow added that the cases will be heard by the same three-judge panel.

The first two in-person hearings before the Federal Circuit are scheduled July 6. Perlow said although the courtrooms will remain closed to the public, the cases will still be streamed on YouTube.

"We are very gratified that the Federal Circuit has chosen our case," Christina V. Rayburn, a partner at Hueston Hennigan LLP who will argue next month on behalf of ClearOne, told Law360 via email. Representatives from other parties involved in those cases did not immediately respond to request for comment Tuesday.

In addition to directing the court's clerk to begin scheduling cases to be heard at the National Courts Building in Washington, D.C., instead of by phone, the court put out a new set of safety protocols for attorneys to follow while arguing cases there.

"These protocols reflect the court's strong preference for in-person argument, based on the court's experience of its distinctive value, and the court's concern for the health and safety of the court and its staff, the bar and the public," the court said in its announcement.

These limit the number of visitors allowed in the courtroom to only the attorneys arguing the cases "and no more than two other attendees whose presence is necessary to assist or supervise arguing counsel."

While lawyers will not be required to be vaccinated in order to argue in front of the court, those who are fully vaccinated will not have to wear masks or abide by social distancing precautions.

The new rules also allow lawyers to request to still argue their case remotely, so long as they "declare under penalty of perjury that counsel's travel to, and physical presence at, argument would place counsel or a person in counsel's household at an unacceptable risk of developing serious health complications from COVID-19."

No further proof will be required and the opposing side will still be required to appear in person for the hearing. While the last year of remote hearings occurred by phone, remote appearances will have to occur via videoconference, if possible, according to the rules.

The new rules also establish protocols for such switches to happen immediately, given unforeseen health issues and also to ensure that the court's heavy schedule can proceed.

"Every attempt will be made to go forward with the argument as scheduled," the new rules say. "The court will not adjust argument solely because counsel's attendees are unable to enter the National Courts Building."

Like the judges, many of the court's longtime practitioners were wary of the move to hold arguments remotely. Debbie McComas, a partner at Haynes and Boone LLP who argued remotely on behalf of Apple earlier this month, told Law360 on Tuesday that she's excited to get back in the building.

"The court did an exceptional job of maintaining professionalism as we appeared for telephonic arguments, but there is simply no substitute for the ability to stand before the judges, see their faces and address their questions and concerns in a more direct environment," McComas said.

McComas said she wasn't bothered by the new COVID-19 protocols, calling them both "quite reasonable" and "a small inconvenience compared to the benefits of returning to a more normal courtroom experience."

--Additional reporting by Dani Kass, Tiffany Hu and Britain Eakin. Editing by Stephen Berg.

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

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Case Information

Case Title

Juno Therapeutics, Inc. v. Kite Pharma, Inc.


Case Number

20-1758

Court

Appellate - Federal Circuit

Nature of Suit

830 Patent Infringement (Fed. Question)

Date Filed

May 01, 2020


Case Title

Shure Incorporated v. ClearOne, Inc.


Case Number

21-1024

Court

Appellate - Federal Circuit

Nature of Suit

830 Patent Infringement (Fed. Question)

Date Filed

October 08, 2020

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