Keys To Success For Remote Patent Hearings And Trials

With courts and agencies going remote over the past year, attorneys have had to learn, practice, and polish their virtual presentation skills. This change in forum is particularly challenging for intellectual property and patent lawyers going before the courts and Patent Trial and Appeal Board (PTAB), with hearings and trials often involving a mix of evidentiary presentations, witness explanations, direct examinations, and cross-examinations live on video.

A recent program hosted by Practising Law Institute, How to Successfully Handle Patent Hearings and Trials Online, addressed this topic with practical tips on etiquette, preparing witnesses, and more. The program faculty, James Hannah and Lisa Kobialka, both of Kramer Levin, are seasoned veterans in this space, having handled the first online federal patent bench trial via Zoom, as well as the first online PTAB trial via WebEx.

Here are some key takeaways from this expert faculty – tune in to PLI’s on-demand One Hour Briefing to learn more.

Lights, camera, action.
In preparing for a remote proceeding, you’re “putting together a production for the camera,” Kobialka observed. Just like a director or producer, you need to visualize your presentation from your audience’s perspective in order to connect with them. Because viewers are receiving information on just one or two computer screens, practitioners need to plan the best way to present evidence and arguments effectively and meaningfully.

Take turns.
When preparing your witnesses and team, make sure everyone knows how to mute themselves and what being muted and un-muted looks like in the platform. People need reminders not to talk over one another in this setting, which requires close observation and active listening to be sure the previous speaker has wrapped up their thoughts.

Have a communications plan.
While Zoom and other platforms offer chat functions to communicate off-camera, you should use this feature sparingly, Hannah advised. Chat windows are distracting (and worse, what you type to your team may not be private). Well before your hearing, you should work out ways to communicate with your team using additional tools outside the meeting platform, especially if each participant is remote.

Get ready for your close-up.
This goes for you and your witnesses, the speakers said. Whether speaking or listening, people’s facial expressions can be more readily picked up on a video conference, and the more intimate setting lends itself to additional scrutiny and questions by the judge.

Be professional.
There’s a “casualness” to being online, Hannah and Kobialka noted, which you will need to overcome in order to deliver an effective professional presentation. Look for ways to minimize background noise and movement, and make sure all speakers have a presentable environment or clean virtual background. Remember that you’re still expected to stand for the judge, which means you must dress for court – from top to bottom (no running shorts with a suit and tie on top!). At the same time, avoid patterns, which can appear too busy (or, worse, “like a Christmas tree”) on screen, Kobialka advised.

Check your tech.
Dressing for success also applies to the technology you use. Note that while you want to ensure that you and your witnesses are clearly audible, with a strong mic and speaker connection, wearing bulky headphones or sporty earbuds can create an informal impression. Your tech team should be enlisted to help you check all connections along with all of your other technical logistics – and practicing in advance is key.

Ready to dive deeper into IP and patent law? Upcoming PLI programs include: Patent Litigation 2021: Advanced Techniques & Best Practices, Patenting Blockchain and Distributed Ledger Technologies 2021 and Advanced Patent Licensing 2021.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.