Re-thinking the ‘Fireside Chat’ format: How would _you_ like it? Let me know, please.

Reading time: 3 minutes

Please bear with me, I will skip the April edition of the ‘Swiss Patent Litigation – Fireside Chat’. For two simple reasons: First, I am on holiday (and I do not even have a headset with me). Second, the few things that have happened last month can easily be dealt with in the next session.

What’s your opinion on the format?

Clubhouse logo

I started the ‘Fireside Chats’ more than a year ago on Clubhouse, always on the last Wednesday of a month at 19:00 hrs CET. I still like what I do there, and I had some very interesting discussions already.

But what about you?

Some told me that the time, 19:00 hrs CET, is not ideal. Commuting time, dinner time, family time, etc. Now, what about switching to lunch time, let’s say 12:15 CET?

Which time suits you better?

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And what about Clubhouse in general? What I like about this format is that it really encourages discussion, not consumption. It is audio-only, i.e. the entry barrier is very low. Likewise, participating in a discussion is very easy: Raise a hand, jump on stage and let people know what you think. I do believe that some of the spontaneous discussions I had on Clubhouse would not have been possible e.g. in the comments on a Blog, or LinkedIn. However, Clubhouse is yet another platform, and some might just not want to install yet another app on their devices.

Alternatively, I have seriously considered LinkedIn Live. LinkedIn is the forum where most of my contacts are around, anyway. And LinkedIn Live is not rocket science; it worked well for me in a test drive. However, I am afraid to lose the interactive character of the Clubhouse chats: Listeners may well post live comments or ask questions in the chat, but cannot directly join the discussion. Oh, and you would have to endure the sight of me (which really does not add value); it would not be audio-only.

What do you think:

Clubhouse or LinkedIn?

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Btw, if and when LinkedIn really comes up with what appears to be a Clubhouse / oups / Audio Event feature, I will switch (back) to LinkedIn for the fireside (or lunchtime) chats immediately.

Finally, I wonder whether inviting guest speakers might add value. No, I don’t mean to just ‘simulate’ a discussion that is wholly pre-determined like in a screenplay; I would want to keep the spontaneous character in any dicsussion.

What about guest speakers?

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Thanks for letting me know; your feedback is much appreciated.

Cheers, Martin

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Proposed amendment of the PatA: Do you like it?

As mentioned earlier on this Blog here, the draft bill of the new PatA has been published recently, in accordance with the ‘motion Hefti’.

Clearly, the interested circles had been involved early on in the discussion, see e.g. the Polynomics report of 2015 that recommended the introduction of examination on the merits for patents, alongside with a utility model. But participation in the underlying survey had been low at that time (3.8% return rate), and there have also been critical voices (see e.g. here, fulltext available here).

I’d really like to know, in the face of the draft bill with examination on the merits for patents, alongside with a utility model:

Do you support the gist of the draft bill, i.e. the 'motion Hefti'?

  • No (64%, 25 Votes)
  • Yes (36%, 14 Votes)

Total Voters: 39

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The poll has been open 14-22 November 2020.

Thank you very much for taking the time to respond.

/MW

POLYNOMICS REPORT (2015)

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Should instruction hearings and/or court-mediated settlement talks be public?

Reading time: 5 minutes

The FPC has attempted from the very beginning to settle its cases by compromise; see e.g. the Annual Report 2013 (p 6, left col):

The Federal Patent Court sees itself as a service provider to the private sector. Each patent case is an obstacle for all of the parties concerned and the aim is to overcome this obstacle. One means of achieving this objective is to issue a judgment but a better alternative is for the parties to reach a compromise. The Federal Patent Court therefore strives to reach mutually acceptable compromises in its handling of cases. During instruction hearings, which take place after the first exchange of briefs, the court delegation provides the parties with a preliminary legal as well as – and especially – a technical assessment of the dispute. The Federal Patent Court expects that this approach will result in a settlement by compromise in around 50% of the  cases,  […].

Please see this Blog here if you are interested in the actual development of the settlement rate over time; the early estimate has proven stunningly correct.
Private stuff(?)

Instruction hearings at the FPC (referred to in the above citation) have never been announced by now. I thus cannot tell whether the public would be admitted to attend or not. One just cannot even try to attend in the absence of any announcement — i.e., neither the first (formal) part is public, nor the second (informal) part where the court-mediated settlement talks are taking place.

I frequently report about main hearings at the FPC on this Blog; see e.g. here. Contrary to instruction hearings, the main hearings are announced and thus it is very easy for the public to just walk in and see what is going on. The presiding judge always asks the parties at the end of the hearing whether they are interested in settlement talks. In the early days, I had to leave only after the parties had agreed to have settlement talks. In more recent times, I am being asked to leave the room even before the representatives even answer that basic question. This way, the public does not even get to know whether or not settlement talks take place, not to mention how they are conducted or the result thereof.

I shrugged that off by now, even though I didn’t like it. But it appears that public accessibility of hearings and court-mediated settlement talks are currently of quite some wider public interest. Corsin Zander (Tagesanzeiger) recently reported about some labour law cases before a Zurich court where the public had been expelled from court-mediated settlement talks. Apparently it is customary at the Zurich labour courts for the presiding judges to give an initial, non-binding assessment of the case in the courtroom prior to court-mediated settlement talks. Likewise, this is what happens at the FPC (see above).

As reported by Corsin Zander, Markus Schefer holds that it is problematic that journalists cannot check how the judges act in such settlement negotiations. The renowned professor of constitutional and administrative law at the University of Basel well understands the will to exclude the public from settlement negotiations because two private individuals are trying to come to an agreement. But if such negotiations are conducted with the assistance of a court, at least the behaviour of the judges should be public, says Schefer:

Courts act in the name of the state. The public must be able to understand this.

That’s currently not the case. But one might easily conceive court-mediated settlement talks being conducted in a way that makes the court’s conduct public, while at the same time the parties negotiate the details in break-out sessions, based on the court’s input. Anyway, my understanding is that the Supreme Court will now have to deal with the issue because a journalist brought the matter to the attention of the Supreme Court.

While I do have some understanding for courts to expel the public from settlement talks in certain labour law issues (which may occasionally be of very personal nature), I fail to see why that should be the case in typical proceedings at the FPC where SMEs and multinationals quarrel over patent infringement and/or validity.

I’d be keen to know your thoughts on the following questions:

Instruction hearings

Instruction hearings are foreseen in Art. 226 CPC. The formal part is followed by court-mediated settlement talks (if the parties are interested).

Should instruction hearings at the FPC be open for the public to attend?

  • Yes, without ifs or buts. (44%, 12 Votes)
  • The formal part: yes; the settlement talks: no. (37%, 10 Votes)
  • No. (19%, 5 Votes)

Total Voters: 27

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The above poll had been open from May 5-20, 2019.

Public announcement

Should instruction hearings be publicly announced, just like main hearings?

  • Yes. (72%, 18 Votes)
  • No. (28%, 7 Votes)

Total Voters: 25

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The above poll had been open from May 5-20, 2019.

Main hearings

Main hearings are foreseen in Chapter 3 CPC (Art. 228 ff). Parties are typically asked at the end of the public hearing whether they are interested in court-mediated settlement talks.

Should the court-mediated settlement talks at the end of the main hearing be open for the public to attend?

  • Yes. (44%, 11 Votes)
  • No, except for the fact that they are taking place. (40%, 10 Votes)
  • No, incl. the fact that they are taking place. (16%, 4 Votes)

Total Voters: 25

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The above poll had been open from May 5-20, 2019.

/MW

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