What Texas Patent Attys Need To Know For Remote Practice

Law360 (March 25, 2020, 9:41 PM EDT) -- Texas patent judges are working to adapt their pre-coronavirus pandemic courtroom procedures for the virtual world, even if that means conducting hearings with the occasional dog barking in the background or attorneys presenting argument in front of a backdrop designed by their children.

U.S. District Judge Barbara M.G. Lynn, chief judge for the Northern District of Texas, had considered relaxing the dress code for her virtual court settings, but decided against it. She thinks that wearing coats and ties helps attorneys feel like they're in the courtroom still. But — as one attorney told her — what they wear on the bottom is up to them.

"One attorney realized it was like Winnie the Pooh," she said laughing. "You only had to be dressed from the waist up."

As attorneys and judges adapt to working remotely, there are still several questions about what is expected. Law360 reached out to federal judges who handle patent cases in the Lone Star State to provide some answers.

Judge Lynn said she expects attorneys to be as well prepared as if they were heading into her courtroom, but that she would work with parties if a document or resource were unobtainable for a COVID-19-related reason.

She said she doesn't expect to stop holding hearings because of the pandemic.

"I'm considering myself open for business," the judge said. "I'm working as if I'm doing my regular job."

U.S. District Judge Rodney Gilstrap, chief judge in the Eastern District of Texas, isn't as big a fan as Judge Lynn of virtual hearings, and offered some advice for attorneys who may have to call in to telephonic hearings: use a landline if possible and mute yourself when you're not talking.

The judge said he has successfully held scheduling conferences over the past week with no real complaints other than an occasional extraneous noise. He has had up to 50 attorneys dial in and wait for their case to be called, just as they would if they were sitting in a courtroom.

U.S. District Judge Alan Albright in the Western District of Texas published an order Tuesday that suggested attorneys call in to these mass hearings 10 minutes before their scheduled time.

His order also created guidelines for attorneys to use PowerPoint presentations in his courtroom. According to the order, presentations for Markman claim construction hearings must be emailed to the court within six hours of the parties receiving preliminary constructions. For all other hearings, the presentations must be emailed 24 hours ahead of time.

Judge Gilstrap said parties in a three-hour Markman hearing sent physical copies of their presentations overnight to opposing counsel and the judge so that everyone could see the slides during argument.

Judge Lynn said for future hearings she plans to ask for presentations to be sent via email beforehand just like Judge Albright.

Judge Albright did not immediately return requests for comment Wednesday.

While videoconferencing allows the attorneys and judges to see one another, there is something Judge Gilstrap said parties should look out for: audio lag. He advised that attorneys who normally speak quickly try to slow down during virtual hearings. That will also give him and the other parties a chance to interject if needed.

He said the virtual hearings are not ideal, but they will work in keeping the process of justice going.

"It's important to keep the progress of the courts moving, because at some point we're going to come out of this and everyone will want to hurry up and do everything," Judge Gilstrap said.

Meanwhile, Judge Lynn sees a new opportunity for convenience and cost-cutting. She said although she's only conducted a couple of virtual hearings so far, she is already a fan and so are the parties involved. There may be a place for virtual hearings even once everything is back to normal.

"I may be more willing to suggest this," she said, especially when it comes to routine matters or attorneys who have to travel across the country.

--Editing by Brian Baresch and Michael Watanabe.

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

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