December Marshall Patent Status Conferences

Okay, this was technically not during yesterday’s scheduling conferences, but the courtroom was nearly as crowded. Some 39 lead cases involving 62 cases received Markman and trial settings at the bimonthly scheduling conferences yesterday. But attorneys were not required to appear wearing lights (which is a requirement for participating in the annual Christmas parade. At least if you want to win in your category).

Judicial Conference Revises Policy to Restrict Remote Audio Access

The actual press release says “Judicial Conference Revises Policy to Expand Remote Audio Access Over Its Pre-COVID Policy” and the AO states that “[t]he revised policy, adopted at the Conference’s biennial meeting, will permit judges presiding over civil and bankruptcy cases to provide the public live audio access to non-trial proceedings that do not involve witness testimony.” What is actually does, however, is the opposite – it replaces the existing rule which permitted remote access with a new rule that eliminates it in most (perhaps all) cases.

Prior to COVID, remote access to proceedings was not permitted. During COVID, it was permitted for both trials and hearings. This gave birth to the remote access that we’ve grown to know and love for Judge Albright’s court, where you could listen in (along with dozens of law students from Baylor, UT or both) to claim construction hearings, pretrial hearings, and even trials. You could even dial up and watch hearings (not trials) to watch and learn. Or if you had trouble getting started on an afternoon nap – claim construction was there for you.

The Conference adopted the revised policy on the recommendation of its Committee on Court Administration and Case Management (CACM), with the endorsement of the Committee on the Administration of the Bankruptcy System and the Committee on the Administration of the Magistrate Judges System. It is continuing to study related issues, including “whether remote public access to proceedings involving witness testimony could increase the potential for witness intimidation or complicate witness sequestration” so there are some legitimate issues to be considered here long term. But the important thing is that in the short term courts are having to rethink whether any proceedings can be opened to the public online.

Specifically, I noted that the new policy purports to “provide the public live audio access to non-trial proceedings that do not involve witness testimony.” But I understand whether the actual policy – as opposed to the press release – may effectively do this. So we’ll be watching to see if there are some types of proceedings which will remain open to the public.

This doesn’t affect party access – trial teams can still get a link, as we had for a hearing this afternoon (although the “Judge Albright – Criminal Proceedings” header did cause a little apprehension since we didn’t “think” we’d done anything justifying the change). But the public will have to find something more interesting to watch than Markman hearings now. Star Trek: Lower Decks anyone?