A pleading against reading out pleading notes

Reading time: 3 minutes

I have attended quite some public hearings at the FPC over the last years. Frankly, most of them are boring.

Why is that?

It surely is not because of the subject-matter at stake; that’s the interesting part. It’s the pleading notes that bother me. In most cases, pleading notes are handed over to the judges, the clerk and the other party, and those pleading notes are then read out. Literally.

The Reader
Reading for hours? Not in court, please!

Guess, what happens: Everybody is immersed in a manuscript, reading it on his/her own — while someone reads the same pleading out aloud.

I cannot think of a worse disconnect between the pleading attorney and the judges! One could as well exchange the pleading notes in writing and skip this part of the hearing. It’s a somewhat weird happening.

The following is a citation from a lawyer’s reflection about pleading notes:

Wir neigen dazu, statt einer Rede einen Schriftsatz zu verfassen und im Gerichtssaal beim Ablesen daran zu vertrocknen.

Loosely translated:

We tend to write a brief instead of a speech and dry up in the courtroom as we read it.

I am trained as a patent attorney, not as a lawyer. Even though I never liked this reading ceremony, I thus complied with it by now. It’s probably not the best idea to be a maverick when not on your home turf.

But does it really have to be like that?

I don’t think so. It’s not the law. I am used to argue my cases for hours in hearings at the EPO, with just some bullet points on the desk to keep me on track. Never would I even think of handing over pleading notes to anyone. My only goal is to get my message through to the Opposition Division or the Board.

Cutting a long story short:

A hearing shouldn’t be a reading, in my opinion.

I am glad to see that it more frequently happens in recent times in hearings at the FPC that no pleading notes are read out aloud and handed over anymore. What I believe is great. Let the real pleadings begin!

I’d be keen to know your thoughts on this:

Should pleading notes be handed over and read out in a hearing?

  • No (89%, 25 Votes)
  • Yes (11%, 3 Votes)

Total Voters: 28

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This poll had been open from August 30  until September 30, 2018. I do not claim that it had been a representative survey — but the tendency is pretty clear …

Reported by Martin WILMING


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How the date of a hearing is fixed

Many courts just issue summons to a hearing at a date of their choice. If this date does not suit you, bad luck. It’s sink or swim. And if sinking is no option, you should really have very good reason to request postponement.

But there is also a Swiss consensus-oriented way to fix a date for the hearing. It goes like this:

When time is ripe for the hearing, the FPC proposes five dates. Actually, you are invited to fill out a Doodle® scheduling request. (No, you don’t see which dates have already been selected by the other party.) Both parties are required to select at least three dates, and preferences can be indicated. This way, there will necessarily be at least one common denominator.

And if one doesn’t accept at least three dates? There still can be a lucky match. But don’t be tempted to decline dates just for convenience. If you do not accept at least three of the proposed dates and there is a mismatch for this reason, this could actually backfire: The President will then fix the date of the hearing in favor of the party who had accepted more dates.

Reported by Martin WILMING


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