By Ryan Davis

Law360 (August 10, 2020, 3:24 PM EDT ) The U.S. International Trade Commission halted in-person meetings in March as COVID-19 began to spread, but concern about a different kind of exposure put most patent cases in a monthslong holding pattern that will end soon as the commission begins holding video hearings.

Some district court judges began conducting patent trials over Zoom relatively quickly after the pandemic began, but those proceedings are generally all public. In contrast, ITC patent cases often hinge on confidential business information, and the commission took months to select a videoconference system it felt satisfied could keep that information secure.

In late July, the commission settled on Cisco's Webex Meetings, and the platform will be used for the first time on Aug. 19 for a claim construction hearing in Universal Electronics' streaming media patent case against Roku, TCL and others. After that, Webex hearings will be held in other cases that have spent months in limbo, which attorneys hope will get the ITC's patent docket back on track before long.

"It's a little different in the ITC than a court because of the very strict way that they treat confidential business information, and that's really been the challenge," said Adam Hess of Squire Patton Boggs LLP. He added that with video hearings now possible, "I think for the most part things should run smoothly."

He noted the commission has detailed rules about who can access confidential information, so during in-person hearings, attendees who aren't authorized to hear it frequently have to leave the room and stand in the hallway. The ITC didn't want to take any chances about exposing that information in a virtual hearing.

"I do think they actually acted fairly quickly, given that it is a large government body," said Elizabeth Niemeyer of Finnegan Henderson Farabow Garrett & Dunner LLP. "They have to go through a procurement process, they have to get it approved and they have to feel confident that it will safely protect the parties' confidential information."

She added that "given the COVID situation, I think everyone has been understanding" about the inability to hold remote hearings for several months, "but it is certainly an inconvenience."

ITC spokeswoman Peg O'Laughlin said in an email that judges have started scheduling video hearings, and "we currently are in the implementation phase of the effort, which involves ensuring compliance with security protocols and addressing any other technical issues."

Before the ITC selected Webex, a working group spent several months conducting market research about videoconference platforms, reviewing the systems used by law firms and private companies and seeking feedback from attorneys and judges about their experience with different types of software.

While ITC judges have held some hearings on motions and other issues via phone or video platforms during the pandemic, that's only been possible when they don't involve confidential information, as in anti-dumping duty cases and certain motions in patent cases.

Evidentiary hearings in patent cases — several-day affairs that are the ITC equivalent of a district court trial — have been at a standstill since March since they turn on the confidential record.

In one case this spring, the parties reached an agreement to hold an evidentiary hearing over Microsoft Teams, but the judge denied their request to use the platform, saying their consent was not sufficient because the ITC has "an independent duty to ensure that [confidential business information] is adequately safeguarded."

Now that the commission has chosen Webex, getting through all the hearings that were on hold for months, as well as those that were originally scheduled for this fall, could present some challenges for the commission, said David Vondle of Akin Gump Strauss Hauer & Feld LLP.

He compared the situation at the ITC to something he used to see when he lived near Reagan National Airport, when lines of planes waiting to land would stretch for miles in the air after a major storm.

"That's where we are now. We've got a lot of hearings at the ITC lined up that are waiting to happen," Vondle said. The cases are mostly done apart from the evidentiary hearing, yet there has been "five months going on six months of no hearings, which is very atypical for the ITC," he said.

Once the judges get through the backlog of hearings that need to take place, they will produce a larger-than-usual number of decisions that will need to be reviewed by the commission before they take effect, which could delay the final outcome in some cases, Vondle noted.

Using Webex for ITC hearings should generally work well since most people are familiar with it, attorneys said, though there are bound to be hiccups and kinks to work out with a new system. That may include the exact processes the judges will use to make sure confidential information is not disclosed to the public during a virtual hearing.

The timing of live hearings may also prove to be complicated, given the international nature of the commission's work. The time difference between the parties in the U.S. and witnesses testifying remotely from Europe or Asia could create logistical hurdles, requiring hearings to be scheduled for unusual times on the East Coast.

"I think the number-one issue will be accommodating the schedules of witnesses who are located outside the United States and trying to get a time that works for them," Vondle said.

In addition, Chinese law prohibits discovery from taking place within the country's borders, so Chinese nationals who are witnesses in ITC cases often travel somewhere else, like Hong Kong, to give testimony, Niemeyer said. If they are unable to make that trip for a video hearing due to pandemic restrictions, "that certainly becomes a different issue," she said.

Even though ITC patent cases have been on hold for months, litigants seem to believe the commission will be able to handle its patent workload despite the pandemic. There were around four new patent complaints filed at the commission during each month in the spring, which attorneys said was about on par with normal, and then 12 in July, an unusually large number.

"So I think parties and lawyers have confidence that the ITC will be able to handle these circumstances going forward, because they're still using it," Hess said.

Now that the commission can hold virtual evidentiary hearings, "I don't think there will be that much of a long-term impact," said Vishal Khatri of Jones Day. "Certainly for litigants that are coming in now to the forum, I don't expect to see much delay in that process, although we're likely to see some modifications in the way things are done."

Webex may have to be used in place of in-person hearings at the ITC for some time. The commission is in the first phase of a three-phase reopening plan, with the last being a return to regular pre-pandemic operations, but attorneys expect that is a long way off.

"Everybody's fingers are crossed that the ITC is going to open up again, but at this point it's hard to project when that's actually going to be," Vondle said. "It's just like everything else — we're all sort of stuck in this purgatory where we're just waiting and seeing what's going to happen."

--Editing by Philip Shea and Orlando Lorenzo.

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