Update On Key Patent Court Scheduling Adjustments In View Of COVID-19
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  • Update On Key Patent Court Scheduling Adjustments In View Of COVID-19
     
    03/24/2020
    COVID-19 has taken an unprecedented toll on the United States and the world at large.  It has impacted nearly every facet of both professional and personal life and, with that, the patent landscape, too—especially as it pertains to the interplay between in-person events (trials, hearings, depositions and the like) and the need for “social distancing.”

    Most venues are walking the delicate balance of trying to maintain their dockets and move cases along, while at the same time deal with the ever-changing “new normal.” 

    Among significant patent venues that have suspended all in-person hearings and trials are the United States Patent and Trademark Office, the International Trade Commission, the Central District of California, the Northern District of California, the Western District of Texas, the District of Delaware and the Court of Appeals for the Federal Circuit.  Most of these venues are also liberally granting parties’ requests for extensions of case deadlines, due to the impact of COVID-19 on parties and their attorneys.

    Perhaps the most significant outlier is the Eastern District of Texas, which has not issued a blanket order suspending in-person hearings or trials, but rather has issued an order with “targeted visitor restrictions” (e.g., those who are sick, have traveled to certain countries, or are a doctor).  The lone exception in the district is the closure of the Plano courthouse until April 1 due to an individual with a presumptive positive diagnosis for the COVID-19 coronavirus visiting the courthouse on March 18.

    There are also differing views of extension requests among judges in the Eastern District of Texas.  For example, on the one hand, Judge Schroeder granted an unopposed request for a three-week extension of case deadlines, where the defendant, witnesses and counsel were from Seattle and some of the individuals had been in contact with individuals who may have been exposed to COVID-19.

    On the other hand, Judge Gilstrap denied an unopposed joint request for a 30-day continuance, where one of the parties was based in Seattle and facing a similar COVID-19 fallout.  In denying the request, Judge Gilstrap reasoned:
     
    It is worth noting, however, that there are no current official travel restrictions or advisories from government health agencies such as the Center for Disease Control and Prevention.  While the Court is sensitive to the Parties[’] concerns and the hazards associated with the Coronavirus, the Court is not inclined to implement delays or grant continuances unless a party can put forward specific concerns backed by firm restrictions from a governmental/public health level or actual exposure.  The Court is confident that the attorneys for the Parties can craft viable solutions that allows the case to continue while minimizing the potential health risks.  Both Parties are well-versed in the technological innovations that would remotely produce high-quality witness depositions.  Having considered the Motion and striving to balance its decision between the competing parameters of prudence and panic, the Court is of the opinion that the Motion should be and hereby is DENIED.
     
    Below is a further summary of how major patent forums are handling COVID-19:

    Patent Office
    • All USPTO offices are closed to the public until further notice.
    • Until further notice, examiner and examining attorney interviews, Patent Trial and Appeal Board oral hearings and other similar in-person meetings scheduled to take place at USPTO offices on or after March 13 will be conducted remotely by video or telephone.
    • Unless otherwise notified, USPTO operations will continue without interruption.
    • Patent application deadlines and other deadlines are not extended, but the USPTO considers the effects of coronavirus to be an “extraordinary situation” within the meaning of 37 CFR 1.183 for affected patent applicants, patentees and reexamination parties.  Therefore, the USPTO is waiving petition fees in certain situations for customers impacted by the coronavirus.
    International Trade Commission
    • On March 12, the Commission postponed all hearings for at least 60 days.  This has resulted in certain judges suspending hearings “until further notice.”
    • The Secretary’s Office will accept only electronic filings during this time.  Filings must be made through the Commission’s Electronic Document Information System (EDIS).  No in-person paper-based filings or paper copies of any electronic filings will be accepted until further notice.
    • Limited access will be granted only to visitors who have a statutory matter.  All visitors are restricted to the first floor of the USITC building until further notice. 
    Central District of California
    • Jury selection and jury trials are suspended until at least April 13, and possibly longer.
    • All deadlines will remain in place unless otherwise ordered by the presiding Judge. 
    Northern District of California
    • Jury selection and jury trials are suspended until at least May 1, and possibly longer.
    • All deadlines will remain in place unless otherwise ordered by the presiding Judge. 
    • All matters will be decided on the papers, or if the assigned judge believes a hearing is necessary, the hearing will be by telephone or videoconference.
    District of Delaware
    • All jury selections and jury trials scheduled to begin on or before April 30 are continued pending further notice.
    • All deadlines will remain in place unless otherwise ordered by the presiding Judge. 
    Western District of Texas
    • All jury selections and jury trials scheduled to begin on or before May 1 are postponed to a date reset by the presiding Judge.
    • All deadlines will remain in place unless otherwise ordered by the presiding Judge.
    • Individual judges may continue to hold in-person hearings and conferences, but counsel may seek relief from those matters by appropriate motions.  The parties are encouraged to seek to participate in hearings and conferences by telephone or video. 
    Eastern District of Texas
    • Restricted access to certain visitors.
    • No district-wide rule regarding in-person hearings or trials, but rather currently treating them on a case-by-case basis by the presiding Judge. 
    • Plano courthouse closed until April 1, and all in-person appearances in that court are suspended until further notice, due to an individual with a presumptive positive diagnosis for the COVID-19 coronavirus visiting the courthouse.
    Federal Circuit
    • All April 2020 arguments are being held by telephonic conference.
    • Court closed to the public.
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