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How to Try a Patent Trial via Zoom – Inside Centripetal v. Cisco, the First Virtual Patent Trial

How to Try a Patent Trial via Zoom – Inside Centripetal v. Cisco, the First Virtual Patent Trial

Earlier this year, I had the privilege of being one of the trial technicians for what is believed to be the first patent trial ever tried remotely – Centripetal Networks, Inc. v. Cisco Systems, Inc., 2:18-CV-00094-MSD-LRL.  Over the course of six weeks, I learned how to effectively, efficiently, and correctly present an all-digital case via Zoom.  Below are a few helpful tips one may want to consider, in the event you find yourself trying a case remotely, as well as some real-life examples from the trial and what the parties did to address them. 

The first steps in conducting a successful remote/Zoom trial occurs well before the trial ever starts.  If done correctly, your pretrial efforts will significantly reduce any technical issues you may experience at trial.  As is the case with all technology, you will always experience some issues.  It is unavoidable.  However, you will have put yourself in a position to handle most issues that come up at trial. 

There is a lot involved with conducting a trial remotely.  If you or your firm do not have a full understanding of the equipment and technology, I highly recommend hiring a trial technician who can guide you through the process and handle any issues that will inevitably arise.  As with a live trial, you only have seconds to fix a technical issue before all eyes are on you. 

 

Technical Setup

Internet

The most important part of your setup is the internet.  Without good, quality internet connection, your trial will be a disaster.  It is the foundation for your audio, video, and everything else you do.  Not only do you have to be aware of your own internet connection, but you also need to ensure all parties, including witnesses, have good connections as well. 

It is highly recommended that you hardwire your device and not rely on Wi-Fi.  As we all know, Wi-Fi allows you to connect to the internet without any wires, and while this is very convenient, it is not reliable.  Because the Wi-Fi signal is being transmitted via a frequency, other frequencies and environmental obstacles (i.e. Bluetooth devices, power sources, walls, etc.) can cause your signal to go in and out.  As a result, you want to remove those impediments and connect via an ethernet cable.  In the event you do not have access to a hardwired connection, consider placing your device as close to the router as possible.  You may also want to eliminate as many sources of interference as possible.

In addition to a hardwired connection, you should try to limit the number of devices on your network.  Ideally, you would set up a dedicated network so that only the necessary devices are on it.  In the event you are unable to set up a dedicated network, try limiting the number of devices and usage as best you can.  If you are at work, consider limiting internet usage that is unnecessary for business operations.  Do not stream music or content, as that will create a drag on your network.  If you or your witness is at home, ensure that as many devices are off the network as is possible and that unnecessary internet usage is limited or eliminated until you are done for the day. 

You will want to know the internet speed of your network, as Zoom has minimum bandwidth requirements for their sessions. 

HERE:

  • Me – 100 Mbps
  • Centripetal – Unknown
  • Cisco – Unknown
  • Court – Unknown

ethernet cable

 

Microphones

The second most important part of your set up is the mic.  Without clear audio, the Judge and/or the court reporter will not be able to hear you or your witnesses.  Although poor or no video may not be ideal; it is not mandatory to conduct a trial.  Just like with the internet, without audio, you are dead in the water. 

As a court reporting office, we conduct Zoom sessions on a daily basis.  As a result, we have really learned what works and what doesn’t when it comes to mics.  We always use external, noise-cancelling USB mics for all of our depositions, and we recommended to our clients that they use them here.  They are louder, clearer, and all around much better than the internal mic you might find on a laptop or other devices.  Some models even have Bluetooth, which is convenient when your internet is poor, as you can connect your phone to the speaker for louder, clearer sound. 

In the event you or your witnesses do not have access to an external mic, you may want to consider a speakerphone.  They are very reliable; however, you may experience an audio sync issue if your internet isn’t fast enough.  The audio sync issue may not be ideal, but it is better than the court and/or court reporter not being able to hear you.  We recommend using a commercial-grade speakerphone, like a PolyCom, if possible, but iPhones are adequate if there is only one person speaking.  A speakerphone is also a great option when your internet connection is poor and you are experiencing audio issues.

HERE: 

  • Centripetal (and witnesses) – Mostly, if not all, our recommended USB mic (contact or office for the specific brand and model number)
  • Cisco – Unknown
  • Court – Unknown

microphone

 

Cameras

The third technical item you will need to address for a successful remote/Zoom trial is your camera.  As stated above, our office has had considerable experience with the video component of Zoom through our daily use of Zoom for depositions.  Just like with the mic, we recommend an external USB camera.  They generally have better image quality and can be mounted wherever you want so you can optimize lighting and angels.  Given the current COVID-19 pandemic restrictions and shortages, you may want to consider ordering one immediately if you have a trial in the near future, as most quality webcams are currently on backorder.  Same would go for a microphones. 

When deciding where to position the camera for trial, take into consideration the lighting in your room and the angel of the camera.  The light source should come from straight on and not from the side.  Anything else will cast a shadow on part of your face.  Additionally, side light, such as a window, and backlight, will create shadows as well and should be avoided.  If the lighting is too bright, you may want to unscrew just one or two light bulbs instead of turning an entire bank of lights off.  

HERE: 

  • Centripetal – External webcam; above eye level
  • Cisco – External webcam; above eye level
  • Court – Appeared to be from a laptop stationed on the Judge’s desk

camera

 

Backgrounds

With all activity and issues that come up at trial, you may want to consider utilizing a virtual background to reduce distractions to other viewers.  For those that are not familiar with Zoom’s virtual backgrounds, it is a way to add an image as your background and have that image cover up everything else in your background.  Zoom uses an algorithm to differentiate you from said image, and, as a result, provides a clean appearance for viewers.  Here, the Judge required the parties to use virtual backgrounds and to mark those backgrounds with each party’s logo (Centripetal and Cisco) so that the Judge could easily identify those on the screen. 

Some virtual backgrounds work better than others and should be extensively tested before trial.  Your location and the lighting may also have an effect on the quality of your virtual background.  Additionally, the virtual background seems to work best when the image has some depth to it, as opposed to just a flat color.  It should be noted that Zoom’s virtual background tool is not compatible with all devices.

HERE: 

  • Centripetal – A photo of a conference room with Centripetal logo in the corner
  • Cisco – Cisco logo on paper taped to a whiteboard (or something similar)
  • Court – None

background

 

Monitors

Zoom is designed to work seamlessly with dual monitors.  Whether it is the Share Screen function or working on other parts of the case, utilizing a secondary monitor is essential to a successful remote/Zoom trial.  I actually had two external monitors connected to my laptop – one monitor for all things Zoom, one for my trial presentation software and PowerPoint, and another completely devoted to Zoom’s Share Screen tool. 

HERE:

  • Me – Two external monitors in addition to my laptop
  • Centripetal – Dual monitors
  • Cisco – Appeared to have at least dual monitors
  • Court – Dual monitors

monitors

 

Pre-Trial Prep

Practice, practice, practice.  I cannot stress it enough.  Through proper practice, you will:

  • Become comfortable with the Zoom platform and how it interacts with your device;
  • Make certain you and your witnesses have an adequate internet connection and proper audio and video;
  • Ensure that you do not have any compatibility issues; and
  • Be able to easily and quickly address technical issues as they arise.

It is important that you and your witnesses practice from the locations you will be participating from during the trial.  Technology is quirky, and even moving rooms in an office can have an effect on the technology.  Consider the time of day and how the lighting may change throughout the day.  Determine whether your space is too noisy (i.e. road noise based upon the time of day, fire station nearby, etc.).

 

Zoom Features & Tools

Zoom

Zoom can be as simple or as complicated as you want.  Most users of Zoom are only aware of its basic features – video and audio connections, chatting, etc.  However, Zoom has many intricate features that enhance and facilitate a better videoconferencing experience.  Below are several Zoom features and tools that I believe were instrumental in our successful presentation of the case.

Share Screen

  • Allows you to share your screen, window, or program with others on the Zoom call
  • Great way for showing PowerPoints and exhibits
  • Works well with trial presentation software (TrialDirector, Sanction, etc.)
  • Can allow another user to control your device, which is helpful if a witness wants to run a PowerPoint themselves

Hot keys

  • Just like most programs, Zoom allows you to utilize “hot keys” for quickly activating or deactivating different functions

Chat

  • Great way to communicate with the group; helpful to troubleshoot technological issues
  • Share contact information
  • Add comments to the discussion without interrupting the speaker
  • Can utilize the Private Chat function to speak with individuals directly, outside the presence of the entire group
  • Share exhibits
    • Drag and drop files you want to share with the group
    • Great alternative to Share Screen in the event you want people to have access to the entire document

 

Trial Examples

As noted above, technical issues are unavoidable with a trial this complex and long.  Despite your best efforts, something will go wrong.  Hopefully, with adequate prep and practice, you will be able to handle any issue that arises.  Here, we were able to handle all technical issues with little to no effect on the trial.  Below is a breakdown of how different aspects of the trial were handled, the issues that arose at trial, and what was done to resolve it. 

 

Day 1

  • Tutorial – Centripetal Expert
    • We utilized the Share Controls tool of Zoom to allow the witness to be able to control the PowerPoint at his own speed, as there was limited interaction with the taking attorney. I was still able to maintain control of the PowerPoint and was able to take control as needed

Day 2

  • Witness – Centripetal Fact Witness
    • The first witness. The Court placed all witnesses Zoom “Waiting Rooms” prior to testifying so that they could be admitted to the trial on a timely basis without exposing them to testimony they were not entitled to be privy to
  • Exhibits
    • Opposing counsel did not deliver the exhibits to the correct person at the Court; sent to the wrong person at the court who was out for the day
    • Be sure to think about and possibly test exhibit exchanges in advance
  • Depo Clips
    • Shown through Zoom’s “Share Screen” function
    • Choose the “Share Computer Sound” option when selecting Share Screen so that Zoom uses your internal speakers for the audio
    • There is an “Optimize Screen Sharing for Video Clips” option when sharing screens in Zoom. It seems like said feature increases the amount of data that is sent so you may want to ensure that your system and the others on the session can handle the extra packets

Day 4

  • Witness – Centripetal Expert
    • Placed the public call (i.e. the call-in number that was available to the public in the event they wanted to “attend” the trial) in a Waiting Room during confidential/proprietary testimony

Day 5

  • Witness – Centripetal Expert
    • Was on his home Wi-Fi network and experienced some audio issues; moved locations in his home and it worked better
    • As noted earlier, make sure you limit the usage of your network if you are connecting via Wi-Fi

Day 7

  • Witness – Centripetal Expert
    • An artifact of an exhibit appeared on the other ends; closed out of Share Screen and re-entered
    • Judge pushed something on his laptop, which caused the Share Screen window to disappear; closed out of Share Screen and re-entered

Day 18

  • Witness – Cisco Expert
    • Had very poor audio quality. Not necessarily internet related, just inferior equipment.  Either used the internal mic on his laptop or iPhone wired headphones (was hard to tell from the video).  Switched audio sources (not sure to what) and it was much better.  This should have been discovered prior to testifying
    • Was using audio from one source and the video from another; prevented the judge, who is on Active Speaker, from being able to see him. Had to merge audio and video feeds into one to allow Active Speaker to work

Day 21

  • Witness – Centripetal Expert
    • Had tested setup during trial prep with no issues
    • Froze for the first time during trial; left and then came back in
    • Thereafter, his USB mic stopped working. Switched over to internal mic for a bit, which was poor.  Switched back after several comments from the court reporter that she was unable to understand him, and there were no further issues.

 

Conclusion

Over the course of the six-week trial, I learned a lot about the intricacies of the Zoom platform and the possible pitfalls of presenting a case remotely/via Zoom.   Because of our success, I would not be surprised if courts around the country adopted similar practices, now and post-pandemic.  The entire process was orderly, efficient, and, most of all, without major technical issues. 

The time and costs savings of conducting depositions remotely/via Zoom have been clear for a while.  Now, we can add conducting hearings and trials to the list. 

How to Conduct Remote Depositions

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