When there are multiple defendants in a patent case, it is common during the appeal for\u00a0each defendant’s attorney\u00a0to argue a portion of the allotted time during oral argument.\u00a0 That rarely works well and the judges have been heard on more than one occassion to express their dissatisfaction with that arrangement.<\/p>\n
At a recent oral argument, as the parties\u00a0were just about to\u00a0begin their oral\u00a0arguments, the panel asked if the attorneys for the defendant-appellants wouldn’t mind rearranging their argument time.\u00a0 Instead of each attorney arguing the issues that affected his respective client, one attorney was asked to speak to all the issues in the opening argument.\u00a0 The other attorney was asked to\u00a0handle the rebuttal argument on all issues.\u00a0 As you can hear Chief Judge Rader explain, this was to\u00a0help the panel develop a more fluid line of questioning.\u00a0[Listen<\/a>].\u00a0 \u00a0The attorneys agreed to accommodate the court; and being\u00a0very talented advocates, they conducted the oral argument\u00a0 without any hiccups.\u00a0<\/p>\n One interesting note is that Chief Judge Rader commented that the court views oral argument as its time.\u00a0 That is probably a useful reminder for appellants.<\/p>\n Asking parties to switch or embrace unexpected issues at the last minute strikes me as a bit unfair.\u00a0 It raises interesting hypothetical ethical issues as well.\u00a0 One could imagine a hypothetical\u00a0situation where defendant A has a strong non-infringement position and wouldn’t mind seeing its competitor, defendant B, found to have infringed the same patent under its weaker theory of non-infringement or invalidity defense.\u00a0 Nevertheless, attorney for party A is asked by the court at the last minute to present on all the issues, which necessarily requires defending party B.\u00a0<\/p>\n You can listen to the entire oral argument here [Listen<\/a>]\u00a0and read the court’s Rule 36 opinion here: [Read<\/a>].<\/p>\n","protected":false},"excerpt":{"rendered":" When there are multiple defendants in a patent case, it is common during the appeal for\u00a0each defendant’s attorney\u00a0to argue a portion of the allotted time during oral argument.\u00a0 That rarely works well and the judges have been heard on more than one occassion to express their dissatisfaction with that arrangement. At a recent oral argument, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/3425"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3425"}],"version-history":[{"count":7,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/3425\/revisions"}],"predecessor-version":[{"id":3433,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/3425\/revisions\/3433"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3425"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3425"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3425"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}