Across Europe lawyers and their clients have not been able to attend hearings. But patent courts are finding enterprising solutions to the problem. Video hearings, submissions via email and online technology are helping Europe's patent courts move forward with their daily work load. In some instance, important cases have been heard via Skype. This long-overdue innovation is setting the precedent for the future of court hearings. But even now, some countries remain reluctant to fully commit.
30 April 2020 by Mathieu Klos
The coronavirus crisis has hit patent courts around Europe hard. Some courts, such as those in Germany, are still hearing cases but behind closed doors. In most countries, however, alternative solutions are being found. Video links and online software are the most commonly used, providing the opportunity for both parties to be present in the most important hearings. In some instances, JUVE Patent research has discovered that litigators and patent attorneys have been acting as observers of proceedings via their home or office.
According to Dutch lawyers, judges at the Dutch patent court have long blocked the use of modern communication methods such as video conferencing or live streaming for oral hearings. But the reality of the coronavirus crisis means has forced their hand. The judges are now reacting quickly and being pragmatic in the new situation.
The Regional Court in The Hague has, for example, been closed since mid-March. Currently, the court only deals with cases in exceptional circumstances or cases of outstanding urgency. Above all, this rule applies to criminal cases. But in a dispute between non-practising entity Sisvel and Chinese and French mobile phone companies over mobile phone standards, a Sisvel patent (EP1129 536) will soon expire.
As a result, on 22 April the Regional Court at The Hague dared to go a different way. Using online chat in a hearing lasting four hours, the court negotiated the technical part of a Sisvel lawsuit against BKK, Oppo, OnePlus and Wiko (case ID: C/09/578930). Lawyers from all companies involved emphasised to JUVE Patent that the experiment was a success. The lawyers are sure that such techniques will soon become popular.
JUVE Patent also learned that the proceedings were closely co-ordinated with the parties through judges Margot Kokke, Edgar Brinkman and Johan de Vries. After agreeing on a new virtual proceeding, the attorneys submitted their final oral pleadings in written format on the Friday before the hearing. Last Thuesday, the actual hearing took place via an online meeting platform. The judges were extremely well prepared and in a manner which is unusual for Dutch patent cases, they immediately started asking questions directly to the parties.
The judges also directly questioned the parties’ experts regarding technical aspects of the patent in dispute. This was seen as a disadvantage for the lawyers is that due to the use of technology, the questions of the judges could not be filtered to the witnesses. This differs from the courtroom’s normal procedures. Nevertheless, the parties involved were satisfied with the proceedings. “With a close guided tour by the judges and the high proportion of written submissions, the proceeding was more like how German patent judges normally handle their proceedings,” says one lawyer. “But it was effective.”
The only drawback was, at the start. It took the judges 30 minutes to bring together the more than 40 lawyers, in-house lawyers, translators and experts individually. These hailed variously from the Netherlands, the USA, Italy and China.
One lawyer involved is confident that the manner in which the hearing was conducted will have important consequences. In future, clients might no longer have to travel to The Hague for global negotiations. The lawyers also told JUVE Patent that proceedings taking place online is largely thanks to the interest and commitment of the individual judges. In principle, Dutch judges are not obliged to take these measures.
But the Dutch patent court wants to get patent cases back on the table as soon as possible. Further cases are now scheduled for May and June. The Hague has offered Dutch patent litigators the opportunity this week to conduct upcoming hearings in same guise as Sisvel, although in the end the parties have an important say in whether this happens.
Courts in Germany are subordinate to the country’s individual federal states. A glance at Germany’s highest patent court, the Federal Court of Justice, shows how differently the courts are handling patent cases. The X. Civil Senate, also known as the Patent Senate, is not only the appellate instance in revocation cases. It is also the appeal instance in infringement cases. Recently, the newly-founded anti-trust senate has also become involved in patent matters. It negotiates SEP cases with FRAND issues.
However, last Thursday, the patent senate under designated new presiding judge Klaus Bacher took the lead in the technological development of modern negotiations at German patent courts. The patent senate at the Federal Court of Justice in Karlsruhe heard a case using a mixed approach. In the nullity suit appeal by Stadler Rail Valencia against a patent on rail vehicles (EP 1171336) of Bombardier Transportation Austria (case ID: X ZR 38/18), for the first time the court combined courtroom presence with online chat.
According to the lawyers present, Bacher took charge and led the proceedings via Microsoft Teams. Unlike in the Netherlands, however, the lawyers of the parties were present in the court room – albeit at a safe distance. The court called in in-house attorneys from Vienna and Valencia respectively. For the Spanish in-house attorneys, live translation was provided from Munich via an extra telephone connection. In the end the Federal Court of Justice declared the Bombardier patent invalid.
In the meantime, the Patent Senate heard a second case with a mixture of judges and lawyers in the courtroom, together with online chat. On 28 April, the court declared a Sisvel patent (EP 1264504 B2) valid in the dispute between Sisvel and Haier over mobile phone patents (case ID: X ZR 35/18).
Next week there will be a big showdown in the same dispute. On 5 May, the court will hear the infringement case about another patent owned by Sisvel against Haier (case ID: K ZR 36/17) . It is expected to be the first judgment by the Federal Court of Justice on FRAND after the CJEU’s ruling in the dispute between Huawei against ZTE in 2015. The judgment is expected to give the lower German patent courts guidance how to deal with FRAND issues.
Patent experts will be looking to Karlsruhe. Europe wants an idea of how German patent courts will interpret FRAND rules in the future. But to find out more, the lawyers will have to travel to southwest Germany. The antitrust senate of the Federal Court of Justice will conduct the hearing in the conventional way, not allowing video transmission or online chat.
There was good news from the lower patent courts in Germany. Hearings will start again next week. The Regional and Higher Regional Courts in Düsseldorf, Mannheim and Munich have recently not been hearnig patent cases. But this will soon change and, from 11 May, the three patent chambers of the Regional Court in Düsseldorf want to hold regular hearings. However, the court will not be able to deal with the same number of cases as usual, because it must take into account measures to prevent infection.
The courts in Mannheim and Munich also want to hear cases again. Waiting any longer with no new hearings in patent matters would lead to a huge backlog of cases. The incredibly busy German patent courts would simply be unable to handle this, which would lead to significantly delayed judgemnts.
However, modern technology is being used only hesitantly by the courts. The court equipment and the technical skills of the judges play a decisive role here. The Düsseldorf Regional Court, for example, is capable of conducting hearings via video transmission. But the building has only one hall with permanently-installed equipment. Furthermore, it is at the judges’ discretion whether to use the technology.
Due to data security German regional courts are likely to view online-chat software with a critical eye. The Regional Court in Mannheim also emphasised that the judges alone decide whether to allow modern forms of communication for oral proceedings. According to sources, however, the chambers are considering using the technology, although a concrete date cannot be foreseen.
The Regional Court in Munich had its baptism of fire today in a lawsuit filed by the NPE WSOU Investment against Huawei over mobile communication patent (EP 1432254). The 7th Civil Chamber under presiding judge Matthias Zigann negotiated for two hours via video (case ID: 7 O 15606/19). The public was allowed in the courtroom and the judges wore masks.
The lawyers of the parties, on the other hand, had agreed to be active from their offices in Munich and Berlin to appear before the chamber.
Video hearings are seen by some lawyers and patent attorneys as not always being in the interest of all parties involved. The European Patent Office, for example, reacted right at the beginning of the crisis. Ot created the technical and legal conditions to make oral hearings by video conference possible.
According to the EPO’s website, all oral proceedings in examination and opposition proceedings scheduled to date are postponed until further notice. The exception is when the office has already confirmed video conferencing, or the oral proceedings in examination proceedings are converted into video conferencing with the consent of the applicant,.
“Many applicants make use of it for exchanges with patent examiners during the grant procedure,” reports a Dutch patent attorney. Only the consent of the applicant is needed. “In oppositions, however, we see very few video hearings. They usually fail because of the opposition of the opposing companies. They have no interest the opponent’s patents being granted and therefore naturally no interest in quick oral proceedings.”
The Boards of Appeal is dealing with the current situation more strictly than the civil courts. The EPO court is not hearing cases until 15 May at the earliest.
While things are moving faster in other parts of Europe, in France the courts still seem relucant to commit to the new wave of technical innovation. In theory, from 16 March during the early stages of lockdown in the country, the government activated its contingency plans for the courts. This should allow the courts to practice video conferencing but limits judicial activities only to essential court cases. For example some criminal proceedings or proceedings before juvenile courts.
The Judiciary Court of Paris (Tribunal Judiciaire de Paris) has exclusive jurisdiction over patent disputes. However, the Tribunal Judiciaire de Paris has suspended all case management hearings, trial hearings and hand-down of judgments until an unspecified future point. Therefore, currently the 3rd chamber which is specialised in IP law has put everything on hold. In some instances, such as the Tribunal de Commerce, the court has decided to use video hearings. However, it seems patent law has for now been pushed aside.
Loïc Lemercier, counsel at Clifford Chance in Paris, laments the lack of video conferencing tools that could allow patent cases being heard in France. He says, “It’s a pity since they would help IP lawyers and specialised judges to keep justice moving in lockdown. Not being able to move courts online will create a massive backlog of cases that could affect our clients since the issuance of numerous decisions will be delayed.”
“Of course, the new proceedings without trial hearings put in place before the judiciary court will be helpful to reduce this backlog. However, the parties have to accept it and I am not sure that our clients will agree not to make arguments orally in a patent case.”
It is clear, therefore, that an unwillingness to hear patent cases via alternative methods is not only impacting the cases and lawyers involved. In a European market which is being forced to use innovative methods to keep up with demand and maintain a semblance of normality, countries cannot afford to be left behind. If France is perceived as less able to keep up with its German, Dutch or even UK counterparts, the impact on its system post-corona could be more serious than expected.
On the other hand, on 27 April the Judiciary Court issued a interesting statement. It stated that decisions will be issued by the courts without postponement according to a procedure without trial hearings in certain cases. This includes cases on the merits for which written proceedings have been closed and the planned hearing has been deleted between 16 March and 10 May 2020, and pleas of inadmissibility for which a hearing has been scheduled in the same period. It also refers to cases on the merits for which written proceedings have been closed and a hearing has been scheduled between 11 May and 24 June 2020, and pleas of inadmissibility for which a hearing has been scheduled in the same period.
A lawyer also points out that the Court of Appeal has also postponed some compulsory hearings before it.
The French Patent Office (INPI) has also postponed many procedural deadlines until the end of June, or perhaps July. A patent attorney at Parisian firm says “This postpones the work on procedures, which is obviously detrimental to patent attorney firms, especially as the number of applications is falling significantly.” However, according to the patent attorney, the delay could work to the advantage of the INPI. “The delay gives the INPI time to catch up from its significant backlog, and to bring forward the implementation of many new projects such as the entry into force of the Loi PACTE.”
They continue, “While companies will most likely reduce their number of filings with the crisis, I don’t know if there will be an impact on ongoing litigation or petitions. Are we abandoning the idea of litigation because of an economic crisis because we have less means? Or do we have more time to devote to it?”
As for patents in the UK, the courts have already made it clear they’re open for business – via Skype, telephone link, or any other technology at hand. A notice on the website states that “while the Interim Applications Court will continue to sit during the current pandemic, parties are being encouraged to arrange remote hearings with the judge using Skype for Business or by telephone wherever possible.”
Daniel Alexander, barrister at 8 New Square and deputy High Court judge, says, “The approach of the English commercial courts has been to keep as much on track as can be if that will be consistent with maintaining quality of justice. That seems to be working. In patents, one FRAND trial was moved from March to later in the year. However, where both sides have wanted a trial to go ahead, the English courts are working hard to make it possible. So far so good.”
Such willing acceptance of the current situation will certainly stand the UK courts in good stead. In fact arbitrations are often heard remotely. In fact arbitrations are often heard remotely. Alexander says, “It is already common for hearings in such cases to take place remotely at least in part because tribunals and parties are often in different countries and cross-examination over video link is not uncommon in a number of cases. The English Court of Appeal has heard several cases remotely, including a patent dispute, and that seems to be working well.”
Perhaps a willingness to adapt is hard-wired into the UK courts’ approach. Although the existing use of video links does make it easier for the UK courts in terms of technology and usability, it also indicates forward-thinking. Not every hearing can play out in the same way. That judges are able and willing to apply new rules in unprecedented circumstances reflects well their way of thinking.
Furthermore, the courts are not only making provisions for laywers and judges. One UK patent litigator told JUVE Patent, “Video hearings are now happening every day in court, combined with a great awareness of the importance of maintaining open justice throughout the period. Journalists are being encouraged to attend on Skype, or whichever platform is in use, and in fact the hearings are open to third parties too. I have personally attended a case management conference over Skype in front of Richard Hacon, as a third party observer.”
The technology is not just reserved for big-ticket litigation cases, however. Pre-trial and procedural hearings are also making use of the technology. Daniel Alexander, for example, sat as a deputy judge, via Skype, in a pre-trial hearing in Heineken vs. Anheuser-Busch Inbev on 9 April (case ID: HP-2018-000027). The interim judgment considers some issues arising from coronavirus-related disruption. However, although the High Court proceedings were due to start on 27 April, as JUVE Patent understands the parties settled beforehand. This would have been the first full-blown High Court patent trial to employ the newly-adopted technology.
And Heineken vs. AB Inbev are not the only companies to enjoy the taste of a courtroom via Skype, albeit for a smaller-scale reason. Interesting issues are also raised regarding formalities of the court. For a different matter, Kirkland & Ellis partner Katie Coltart was present at Skype proceedings a few weeks into the lockdown phase.
Coltart says, “The only issue was the fixing of the trial start date in July this year, which in any event the parties had agreed the night before the hearing. We went ahead with the hearing though, simply because it was clear that in any event the judge might want to say some things about the trial itself and how that might work if we are still in this difficult pandemic situation by July – in particular because some of the expert evidence in this trial will come from clinicians.”
“It was agreed that the parties would keep an eye on the situation and would have to play it by ear, but that the parties would keep in contact with the court on these issues.”
Old traditions have a place, but perhaps in embracing a more digital future, people previously excluded from court proceedings might be able to participate. Provisions are of course made, for example for mothers with new babies or people who are hard of hearing. But often the institution itself can be dominating and intimidating. Third parties are sometimes unwilling to attend. Embracing a more digital future while maintaining the gravitas of court is for many lawyers in Europe a welcome step in the right direction.
Alexander says, “I have found things to work smoothly for recent hearings. There has not been much difference from doing things the ‘ordinary’ way. So in the UK, things are to a considerable extent ‘business as usual – albeit remotely’ if litigants want, with some adjustments made in timing to take account of Covid-19 difficulties.” (Co-author: Amy Sandys)