In-Person Hearings Should Not Require the Consent of an Adversary
Last week, the PTAB published an updated Oral Hearing Guide (here) to reflect current agency practices. The changes include rather mundane clarifications on such topics as public access and demonstrative submission for ex parte hearings.
More interestingly, however, the agency highlights an all-virtual hearing “option” for America Invents Act (AIA) trials. But, in practice this option is more appropriately considered the new default.
First, virtual hearings (in my view) are just as effective as in-person hearings. I prefer them by a wide margin. But as a practitioner it is not my patent or estoppel risk hanging in the balance. If a party wants its proverbial “day in court” it should not have to seek the permission of its adversary.
While the Administrative Procedure Act (APA) provides a right to a hearing, it does not mandate the manner or place for such a hearing (in-person or virtual). That said, query whether an agency denying an available option that is deemed more robust by the public —rightly or wrongly— is putting its best foot forward.
The Guide explains current practice as:
The parties should state in their respective request for oral argument whether the party would prefer either a video hearing or an in-person hearing, and for in-person hearings, which available location the party would prefer. To the extent the parties disagree, they should meet and confer; if the dispute cannot be resolved by meeting and conferring, the parties should inform the Board of each party’s individual preferences. The Board will notify the parties of their decision, in accordance with current office policy.(emphasis added)
While one might read this passage narrowly as dealing with just disputes in hearing room geography, recent practice informs that this is also about the choice in virtual or live formats. Recent practice has been to disfavor in-person hearings altogether. Just days prior to the Guide announcement PTAB panels were issuing Scheduling Orders that included the following language:
PTAB will only conduct an in-person hearing when requested by all parties.
Thus, while the Guide at least seems to move away from outright prohibition (absent agreement), recent Scheduling Orders would seem to counsel against even asking.
As can be appreciated, if only a single party wants an oral hearing, it would need to confer with its adversary and burden the Board in deciding between virtual or in-person. Even assuming a panel is inclined to go with the in-person request as a matter of fairness, the perception of many parties (with APJs that are overwhelmingly remote themselves) is that this creates an unnecessary annoyance.
Prior to COVID, even if only one party wanted an in-person hearing, an in-person hearing was conducted, which seems to be the fairest way to run the railroad.