[GuestPost]. The Hague Patents Court conducts first virtual hearing in patent case

The DutchKat gets the camera ready
for her first remote hearing

As courts across the world grappled to find ways to continue performing their function in holding hearings and delivering justice, the Courts of England & Wales relatively quickly updated their practice directions and guidance to provide for virtual hearings (see Kat post here). 

In the Netherlands, guest Kat Rien Broekstra (Brinkhof) reports on what the Dutch specialized courts in the Hague are doing:

"In the past few years, the Dutch legislator and judiciary have been working on a project to modernize civil and administrative proceedings by digitizing the docket and providing for electronic exchange of written briefs. The project did not succeed, but did lead to a number of changes to the Dutch Code of Civil Procedure. Video-hearings, however, were not part of the equation: the oral hearing was assumed to be a moment of physical presence in the courtroom (with some exceptions – the legislator explicitly indicated that video-hearings of phone-hearings are not ruled out per se - see here. Also, hearing by phone was already common in very urgent matters).

To meet the new distancing demands resulting from the COVID-19 outbreak, the Dutch legislator enacted the “Temporary law COVID-19 Justice and Safety”, Article 2 of which provides an explicit statutory basis for video or phone hearings (“oral hearing by bi-directional electronic communication means”) in civil and administrative cases if a physical hearing is not possible due to the COVID-19 outbreak. The law has retroactive effect from 16 March.

This allowed the Dutch specialized patent courts in The Hague to follow the UK IP court’s example (see IPKat article here) – and two weeks ago, the Hague District Court conducted its (as far as I’m aware) first oral proceedings via video-link in a rather complex standard essential patent case between plaintiff Sisvel and defendants Oppo, OnePlus, BBK and Wiko.

And with great results – especially for a first time event. The three-judge panel (Kokke (pres.), Brinkman, De Vries) made the parties feel at home by presiding over the case from one of the familiar The Hague courtrooms, with one judge attending the session from home. The court’s technical facilities (a Cisco-based conferencing system allowing access to the hearing using a common web browser) made it possible for experts and clients to attend and participate in the hearing from Beijing to Amsterdam to Chicago. Access to third-party observers was made possible on request. All non-Dutch speaking attendees were provided with a simultaneous translations via a separate platform. The court was willing and able to engage with foreign experts in English, eliminating the risks of points being lost in translation. And finally, some basic operating instructions (enable microphone and video only when addressing the court) ensured the most common conference call annoyances were prevented.

Of course, a virtual hearing is not the same thing as physical presence, and does require additional preparation. In a previous post, Merpel listed an excellent list of tips for remote hearings – which I recommend everyone to follow when participating in a remote hearing.

Of the tips on that list, the importance of a well-functioning separate “break out” channel for communication with remote team members, experts and clients should not be underestimated. The fact that you are no longer in physical presence of these participants means that both verbal and non-verbal communication is much more difficult. This is a genuine issue, and it can be rather unnerving if the court addresses others directly (remember: we are not used to e.g. expert cross-examination in the Netherlands). It makes it even more important to make sure in advance and during the session that every participant knows what to do when he/she gets the floor.

Also, the remote character of the hearing makes it more difficult to show physical items to the court, but at the same time it is possible to take advantage of the additional possibilities of the remote hearing platform. It can be useful to compile a “slide deck” of images (e.g. objects, quotes from prior art, etc.) that can be shared with the court and the rest of the audience during the hearing to support the argument. This does pre-suppose that the platform used for the hearing supports sharing such content – which should be checked and tested in advance.

On a more personal note, I would add that a formal robe is usually solid, and fits the suggested camera dress code perfectly.

All in all, if the COVID-19 situation would require hearings to be conducted remotely in the near future (the Dutch courts are planning to gradually re-open the court buildings starting 11 May, but the practice of online or hybrid hearings may turn out to be necessary in the months to come), such remote hearings appear to provide sufficient possibilities for the parties to be heard. Moreover, even though I personally can’t wait to face the judges and the other side in real life again, I do expect that this first positive virtual hearing experience may well have a lasting impact on the analogue character of our courtrooms. After all, is it really worth the time, costs and footprint to e.g. fly your client in from the other side of the world if a virtual attendance works almost just as well?"