Opinion: It won’t be courts that drive virtual litigation
Citizens rather than courts are more likely to shape the future of virtual litigation, despite the success of remote trials
In some white-collar circles, not many issues are more divisive right now than working from home – whether it works or it doesn’t, and whether it can really be sustained beyond this year.
Anecdotally, many people in UK industries such as journalism and law have enjoyed their new setup. This is supported by figures showing that less than 35% of British office workers are back at their desks (although other factors, including health and safety, will also be at play). In stark contrast, the numbers for France and Germany are 83% and 70% respectively. Workers in the US are also more negative than others about returning to work.
These changing dynamics of office working will continue to have a wide-ranging impact on the legal field, and in intellectual property, this stretches beyond the office to the courtroom. In a discussion on Tuesday at Managing IP’s (virtual) European Patent Forum, the landscape for remote litigation was laid out in clear detail.
The key takeaways were that some courts have performed remarkably well during the pandemic, despite some very challenging circumstances, and that some sort of hybrid-physical setup is likely to prevail in the future.
Of the European (but not EU) nations doing well, the UK perhaps tops the list. It’s true that the UK’s teleconference credentials were already well known – courts there have been doing hybrid trials for years, while Managing IP has previously reported on the more recent fully remote cases. However, Ewan Nettleton, an IP counsel at Novartis, pointed out on Tuesday that the courts have largely stayed on top of their workload despite the full switch. Court clerks have been vital to this success, it seems.
The picture in Europe is more varied. At the Regional Court in Munich, the average case delay is around six months, according to one of its judges, Hubertus Schacht. Although his court was shut for a couple of weeks at the start of the pandemic, he has been conducting hybrid trials via videoconference since, he told the panel.
At the EPO, around 1,000 first-instance hearings have been conducted remotely since March and there are unlikely to be any in person before the end of the year, said Petra Schmitz, a legal member of the Boards of Appeal (BoA).
It’s different at the BoA level, where there has been a mix of virtual and physical hearings, but Schmitz admitted that there has been a limited number of rooms available and that some parties have been unable to travel to Munich. She said a lot of appeals and requests for oral proceedings have been withdrawn.
Most of the challenges so far have been technical and logistical. Believe it or not, Schacht at the Regional Court in Munich is usually responsible for booking the court’s only video-camera – and, as it is shared among several chambers, it’s not always available.
At the EPO, another problem is translation, said Schmitz, who reminded the audience that the EPO has three official languages (English, French and German) and that hearings can be interpreted. As Skype for Business doesn’t allow for this, the EPO can only conduct cases where no translation is needed, she said.
See you in court?
Despite these hiccups, courts in Europe are seemingly doing a good job of keeping IP trials running well. But, does that mean they are here to stay? Are IP lawyers going to flock back to court as soon as it’s safe to do so?
The answer to this, I believe, depends where you are. Just as every country has experienced the pandemic differently, attitudes to post-pandemic life are likely to differ. As someone living and working in the UK, it’s no surprise to me that just 35% of British office workers have gone back to the office.
In a conversation yesterday, a senior IP litigator said he has no desire to return to the status quo and that his firm has performed better during the pandemic. It’s perhaps no surprise, therefore, that the EPO’s Schmitz said in the panel discussion on Tuesday that UK parties have been very happy with virtual hearings so far.
Of course, I can’t speak for those in other countries, but we know about the French and German data. While this could mean that local IP lawyers are more likely to attend court, it doesn’t mean their clients from abroad will.
This view is shared by Schacht at the Regional Court in Munich, who said he expects international participants to dial in from their offices abroad. It seems there would be obvious cost-savings here, as counsel wouldn’t need to trek around the world for trials.
The EPO’s Schmitz said she believes ex parte appeals, which have just one applicant, will go fully virtual. However, she added, the bigger, more important cases are still likely to be heard in person, a view shared by Novartis’s Nettleton.
Whether lawyers continue to embrace virtual trials or not, at least we know they work – and work well.