In-Person Hearings Ought To Not Need the Authorization of an Enemy
Recently, the PTAB released an upgraded Oral Hearing Guide ( here) to show existing company practices. The modifications consist of rather ordinary explanations on such subjects as public gain access to and demonstrative submission for ex parte hearings.
More remarkably, nevertheless, the company highlights an all-virtual hearing “choice” for America Invents Act (AIA) trials. However, in practice this choice is more properly thought about the brand-new default.
Initially, virtual hearings (in my view) are simply as reliable as in-person hearings. I choose them by a broad margin. However as a professional it is not my patent or estoppel danger hanging in the balance. If a celebration desires its proverbial “day in court” it must not need to look for the approval of its enemy.
While the Administrative Treatment Act (APA) offers a right to a hearing, it does not mandate the way or location for such a hearing (in-person or virtual). That stated, question whether a company rejecting an offered choice that is considered more robust by the public– appropriately or mistakenly– is putting its finest foot forward.
The Guide describes existing practice as:
The celebrations must mention in their particular ask for oral argument whether the celebration would choose either a video hearing or an in-person hearing, and for in-person hearings, which offered area the celebration would choose. To the degree the celebrations disagree, they must fulfill and provide; if the conflict can not be fixed by conference and giving, the celebrations must notify the Board of each celebration’s specific choice s. The Board will alert the celebrations of their choice, in accordance with existing workplace policy.
( focus included)
While one may read this passage directly as handling simply disagreements in hearing space location, current practice notifies that this is likewise about the option in virtual or live formats. Current practice has actually been to disfavor in-person hearings entirely. Simply days prior to the Guide statement PTAB panels were releasing Scheduling Orders that consisted of the following language:
PTAB will just perform an in-person hearing when asked for by all celebrations.
Hence, while the Guide a minimum of appears to move far from straight-out restriction (missing arrangement), current Scheduling Orders would appear to counsel versus even asking.
As can be valued, if just a single celebration desires an oral hearing, it would require to consult its enemy and concern the Board in choosing in between virtual or in-person. Even presuming a panel is inclined to choose the in-person demand as a matter of fairness, the understanding of numerous celebrations (with APJs that are extremely remote themselves) is that this produces an unneeded inconvenience.
Prior to COVID, even if just one celebration desired an in-person hearing, an in-person hearing was carried out, which appears to be the fairest method to run the railway.