U. S. Court of Appeals for the Federal Circuit. Courtesy of U. S. Court of Appeals for the Federal Circuit.

In light of the ongoing pandemic, the Federal Circuit announced on May 18, 2020 that it has suspended all in-person oral arguments indefinitely. All arguments that the court finds cannot be decided on the briefs will be scheduled for telephonic argument going forward. The court's announcement raises questions regarding appellate practice and its ability to adapt to the COVID-era remote proceedings.

In March 2020, prior to the imposition of nationwide COVID-19 restrictions, the court heard fifty-seven oral arguments. The April and May remote sessions saw a reduction in arguments, nineteen and twenty-six arguments respectively. Pursuant to the court's calendar, it anticipates hearing thirty-five remote arguments in June, while deciding thirty-two appeals on the briefs. This could indicate that the court is attempting to reduce the number of hearings on its docket. However, in July the court anticipates holding remote argument for 40 cases while deciding only eleven cases on the papers.

Time will tell if the court will take on more oral arguments as it adjusts to the remote, telephonic proceedings; however, in the interim practitioners should focus on the strength, clarity, and organization of their appellate briefs. Even for those cases that are chosen to proceed with telephonic argument, the judges may rely on the briefing even more so than normal to understand the issues on appeal.

Aside from a renewed focus on briefing, practitioners should consider the implications of telephonic proceedings. Like in-person proceedings, appellate counsel should try not to speak over the judges. This may be slightly more difficult with the absence of visual cues; however, a review of the April and May oral arguments demonstrates that simply applying slightly longer pauses during argument can achieve the same result.

While being remote likely poses some challenges for arguing counsel, it may also provide some unintended benefits. When arguing in person, pointing to specific arguments in a brief, case law, or record evidence in appendices could take up valuable time. However, while remote, arguing attorneys or their co-counsel will have the ability to read from references in front of them and/or quickly look up references by electronic means. This may counterbalance any time lost to strategic pauses in light of proceeding via telephone.

The new remote procedures also may impact the Federal Circuit's opinions.  Some have hypothesized that the remote hearings and the potential increase in cases decided on the briefs, will result in more written opinions.  However, out of the 19 cases argued in April, two have resulted in Rule 36 affirmances (Mobile Tech., Inc. v. Sennco Solutions and Canon, Inc. v. ITC, both from Apr. 20, 2020) and two have resulted in written opinions (Rothschild Connected Devices v. Coca-Cola Company from May 18 and Pfizer, Inc. v. Chugai Pharmaceutical Co. Ltd., from  April 27, 2020). In addition, only nine decisions have been issued for the forty-seven cases submitted on the briefs in April 2020.  Of those decisions, there was one precedential decision and eight non-precedential decisions. Notably, none of the cases submitted on the briefs were summarily affirmed via a Rule 36 order. Again, practitioners will have to wait and see the longer-term impact of the new Federal Circuit procedures on the incidence of written opinions.

Ultimately, the same considerations that governed appellate practice before the Federal Circuit for in-person hearings will govern remote practice. However, increased attention to detail both in briefing and presentation of argument should be given to make up for any shortcomings of remote argument. As the court proceeds with these new protocols, we will see how this impacts the number of oral arguments held and the number of written opinions issued by the Federal Circuit.

Greg Corbett is a shareholder in Wolf Greenfield's Litigation and Post-Grant Practices with 20 years of experience, including as lead litigation counsel and representing clients in all stages of complex intellectual property and patent litigation, post-grant proceedings, appellate proceedings, licensing, and client counseling. Greg is a first-chair litigation counsel with extensive experience litigating in multiple jurisdictions.

Marie McKiernan is an associate in Wolf Greenfield's Litigation Practice. She focuses her practice on patent, trademark, trade secret and copyright litigation.