By Dani Kass

Law360 (June 11, 2020, 8:25 PM EDT) -- In this edition of Coronavirus Q&A, the leader of Honigman LLP's life sciences intellectual property litigation practice group discusses how courts have coped with Hatch-Waxman Act litigation and how drug companies are adjusting to an uncertain future. 

As part of a series of interviews Law360 is conducting with attorneys to examine how COVID-19 has impacted business, Chicago-based partner Gregory A. Morris reflects on how patent litigation at multiple venues has had to adjust to virtual proceedings, along with how the pandemic has altered life sciences transactions.

This interview has been edited for length and clarity.

How has the pandemic affected your practice?

The way we do litigation has changed dramatically, in that most depositions, hearings, client meetings and even bench trials are being conducted by video instead of in person. In the new format, it can be more difficult to read people and sometimes there are technical glitches that cause interruptions. But on the bright side, we can take comfort in the fact that these difficulties affect everybody equally. And as litigators, there's a part of us that enjoys tackling new challenges and mastering a new landscape.

If we specifically talk about Hatch-Waxman litigation, certainly the COVID-19 pandemic adds challenges to litigating a Hatch-Waxman case that already has tight deadlines. Branded- and generic-drug makers typically have 30 months to conduct a complex litigation, and what we're seeing is that courts are making every effort to keep these cases moving forward, and that could mean conducting hearings by video or phone. And since Hatch-Waxman cases are typically heard by a judge and not a jury, you see courts even propose trials, or at least parts of trials, take place by video.

Do you have any cases that are looking to go to trial soon over video?

To my knowledge, there has not been a Hatch-Waxman case that has gone to trial by video, but what we're seeing is that that may become the case very soon, even by this summer.

You also litigate at the Patent Trial and Appeal Board. How has that changed?

It was already a part of the experience even before COVID that judges in the three-judge panel could participate by video, but now that you have the whole panel and all of the lawyers participating by video from different locations, there's an increased chance for technical difficulties. Depending on your internet speed at the moment, you could get disconnected and have to call back into a video conference during a hearing, or you could think you are sharing documents and they cannot see it. There's all sorts of things that can arise. But largely, everyone seems to be adapting well.

How have in-person limitations affected your relationships with clients?

We are able to connect with clients very well, even in this COVID-19 pandemic. It started out a little bit bumpy, but everybody has learned to use this technology very well. Really, I don't think it's negatively affected relationships with clients.

Are you seeing changes in how your clients are working?

One thing we're seeing is that in-house lawyers in life sciences companies are wearing more hats and taking on more responsibilities than ever. It's great to be practicing in an area where many clients are even trying to make a meaningful contribution towards developing a COVID-19 therapeutic or vaccine, but what that means is they have many roles in the company and that's an increased challenge.

For example, they may have roles in addition to their normal roles that include assisting and developing the return-to-work framework for their company, and they also have roles in making sure that research and development moves forward safely during all stages of this pandemic.

How do you expect the pandemic to change your practice long term?

Clients are getting very good at using video and adopting new technology to share screens and essentially to make their work at home seamless. We expect to see some clients, even after COVID-19 is behind us, to continue to use those technological methods to work from home, and so we imagine that that will be a trend going forward, at least to some extent.

People, both parties and courts, are figuring out very creative solutions to how to move cases forward even during the pandemic, and a lot of those may translate after the COVID-19 pandemic is over. Could be things that are simple, like having technical solutions to collect documents remotely or to hold hearings by video. But certainly the creative solutions that we've seen may find a place in post-COVID litigation.

Are you expecting to see any changes in what kind of cases are on your plate?

I think what we're seeing is that the kinds of cases on our plate remain very similar. Courts are making a lot of effort to move those cases along as best they can. In a number of cases, they are succeeding in not really changing the timeline from the pre-COVID timeline that was already set.

You're also involved in IP aspects of life sciences transactions, including licensing, and mergers and acquisitions. How has that been affected by the pandemic?

We're seeing that deals are still moving forward and people are still evaluating opportunities even in these times. Companies are taking into account how the environment may be changing, including the way clinical trials are conducted, and that could affect how they evaluate a particular deal. In certain instances, clinical trials are accelerated, especially if they relate to treatments for COVID-19, but in other cases there could be delays. Companies are taking that into account when they evaluate deals. It's difficult to predict how things will develop going forward.

Can you describe how any work outside of your usual practice has adjusted?

I'm a member of [the Richard Linn American Inn of Court] and we have regular monthly meetings where we gather and have [continuing legal education] concerning various topics in patent law, and even during these COVID pandemic times, the group has switched our meetings to online very successfully. We're holding a trial advocacy challenge that will be online, giving participants the opportunity to experience argument in front of district court judges and receive feedback by video, so that's an example of folks coming together and proposing creative solutions during the pandemic.

--Editing by Kelly Duncan.

Check out Law360's previous installments of Coronavirus Q&A.

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