By Dani Kass

Law360 (October 1, 2020, 9:11 PM EDT ) U.S. District Judge Alan D. Albright has one request for attorneys arguing patent cases before him, whether over video or in his Waco, Texas, courtroom: When he asks a question, just answer it.  

"I'm not the brightest person in the world, I'm not the best lawyer in the world, but I'm bright enough to know when I'm not having my question answered," Judge Albright said at the American Bar Association Section of Intellectual Property Law's virtual IP Fall Institute.

The plea came during a panel called "Virtualization of IP Litigation: Tales from the Benches," also featuring U.S. District Judge Maryellen Noreika of Delaware and Chief U.S. District Judge Philip S. Gutierrez of the Central District of California. The judges broke down how their courts are preparing for patent trials during the pandemic — starting with an in-person jury trial before Judge Albright on Monday — and how attorneys can best argue their cases.

The Texas trial set to start Monday is MV3 Partners v. Roku, and Judge Albright seemed confident in the precautions his court has taken.

For example, he said, there will be plexiglass around the witness stand, which will be cleaned between each witness, and there will be two chairs between each of the seven jurors, who will all be wearing masks. He said up to 40 masked people will be able to watch from the audience and still have 10 feet between each other.

While the Waco clerk's office had been dealing with calls from concerned potential jurors, Judge Albright said once they were informed of its precautions, he believes there's been zero opt-outs.

In Delaware, Judge Noreika said there haven't been any jury trials yet, but that she recently oversaw a bench trial where a limited amount of counsel attended in person and witnesses appeared remotely on a large screen. Her main complaint was that witnesses couldn't point to things they were referencing on exhibits.

She also said she found it "distracting" when attorneys slipped up on technology. Judge Noreika said she watched in real time as an attorney sharing their screen emailed their colleague who was presenting with a response to the judge's question. In other instances, attorneys have been heard in the background talking about what the judge did or didn't understand, she said.

Judge Noreika said there have been multiple instances, like in the trial she just oversaw, of parties dropping jury demands in order to get their case heard sooner, but neither of the other judges have had parties switch to bench trials.

The judges gave several pieces of advice for both remote and in-person proceedings, including having exact references on hand during arguments so judges don't have to flip through hundreds of pages of exhibits.

Judge Gutierrez, like Judge Albright, said the most important thing during hearings though is actually answering the questions presented by the judge.

"Especially in claim construction, it's something that is either confusing me or something I'm undecided on," he said. "The practitioners that appear in front of me have to pay close attention to the questions that I ask because I've read everything, I've looked at everything. It's not helpful to me to let you repeat what you have told me in your paper."

Judge Gutierrez also said when parties use PowerPoint — for which they must ask permission — he wants them handed over to him and opposing counsel early so he can prepare questions. That took Judge Albright by surprise, saying he was "shocked" to learn judges could say no to PowerPoints. 

In terms of caseload, Judge Gutierrez said his district had 345 patent cases last year and is on track to have about 333 this year. And despite the pandemic, the cases are still being resolved at largely the same rate.

"I think it is because the cases are moving forward without trial," he said. "I guess the litigants are getting certain issues they need to get resolved in order to settle cases."

Judge Gutierrez said in-person jury trials won't be allowed in his California district for at least another month, and that based on the number of COVID-19 cases, the Orange County division would likely resume in-person trials first, followed by Riverside and then Los Angeles.

Judge Noreika didn't have exact numbers, but said she felt like there was a minor drop in patent cases this year. Meanwhile, Judge Albright's caseload has continued to grow, and he said he already has had twice as many patent cases filed by September than in all of last year.

Even once the pandemic ends, the Western District of Texas judge said he'd consider holding hearings over Zoom if it makes the parties happy, although he's not open to hybrid hearings, saying, "Just in terms of being fair, it ought to be fish or fowl."

Judge Gutierrez said he was less inclined to hold proceedings virtually any longer than needed.

The issue of civility also came up during the discussion. Judge Gutierrez said at the beginning of the pandemic, he had a flood of attorneys acting uncivilly in their briefs, including ex parte motions declaring emergencies in non-emergency situations. That's calmed down since then, he said.

Judge Noreika said she's grateful she didn't have a similar experience in Delaware, or at least was so overwhelmed at the beginning of the pandemic that she didn't notice it was happening.

"I think the people who would litigate civilly in normal times have continued to do so, and the people who just want to be a bit more difficult have continued to be more difficult, and perhaps there are more things that they can be difficult about during the pandemic," she said.

When Judge Albright was asked for his take on civility, his audio didn't come back on, so Judge Noreika stepped in on his behalf with a challenge.

"He wanted to say that everyone is always civil in front of him, and he doesn't even know what you're referring to when you talk about people who are not," she said, jokingly adding, "[To] those guys out there, you need to show him what incivility looks like."

--Editing by Alanna Weissman.

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