As it has almost every industry and business around the world, the COVID-19 pandemic has altered the practice of law. While these unprecedented times present myriad problems, patent attorneys are among the best equipped to adapt and embrace the changes. Because of the global nature of patent law, which often necessitates regular travel to appear in court, depose witnesses, meet with clients and/or engage in other face-to-face business endeavors, patent attorneys generally are accustomed to working remotely and relying on technology to operate their practice. As a result of procuring, protecting and promoting cutting-edge technology and innovations, patent attorneys often are also early adopters of products and services that eventually become essential business tools.
Technology like e-discovery and remote depositions enables attorneys to continue to work without disruption during the pandemic but still poses considerable obstacles. For example, conducting a deposition requires extensive coordination of and technological compliance from the witness, both sides’ attorneys, the court reporter and/or videographer, and any other necessary attendees. Specialized software is needed to reliably present exhibits, or alternatively, physical copies of all potential exhibits need to be sent to all parties prior to the deposition. Consequently, this may result in less-productive depositions because of an inability to cover as much material due to technical difficulties and/or to execute a strategy effectively in the intended manner.
However, the inability to travel has resulted in some unintentional positive results. For instance, calling into or videoconferencing for hearings and other traditionally face-to-face meetings, instead of flying across the country saves a substantial amount of time and money. If this continues to be productive, courts may no longer require in-person appearances for certain proceedings such as status hearings, emergency motions and the like.
Unfortunately, no level of tech savviness can counteract some pandemic-created problems. For example, court closures have created a backlog of criminal cases that require priority over civil cases in order to comply with the constitutional right to a speedy trial. Accordingly, patent litigation cases have had and will continue to have delays. Whenever it finally is time for trial, it is unclear what aspects of the trial will be different. This type of uncertainty hinders attorneys’ ability to prepare for trial and clients’ abilities to make business decisions in light of pending litigation. Additionally, both plaintiffs’ and defendants’ willingness and/or ability to litigate or settle may have changed as a result of fluctuating economic factors attributable to COVID-19. Therefore, it is too early to determine exactly what effects the pandemic will have on the landscape of patent litigation.
While many of these pandemic-initiated measures and practices may seem temporary, they eventually may become the norm. But the existence of a problem or inconvenience invites a solution, and the present circumstances surely will spawn numerous technological innovations that the legal market will come to rely on. Nevertheless, attorneys will find themselves in court, physically or virtually, litigating intellectually property issues of that technology.
