GERMANY being one of the world’s largest economies, it is only logical for companies to get patent protection in Germany by means of a European or German patent. This applies all the more since Germany is by far the most prominent jurisdiction for patent litigation in Europe. Currently, more than 1000 cases are filed each year. German courts attract national as well as foreign plaintiffs for their comparatively fast proceedings, low fees and predictability of decisions rendered by experienced judges specialized in patent law. Thus, Germany is very frequently chosen as one or even the European jurisdiction when it comes to large-scale multinational patent disputes. Currently we see this, for example, in the so-called “smartphone war” raging between major telecommunication players across continents and national borders. Other “litigious” sectors are especially pharmaceuticals, electronics, IT and medical devices.
FORUM SHOPPING
Within Germany a plaintiff can choose between 12 designated district courts, depending inter alia on where the infringing act has occurred, while in cases of infringing products offered via the internet any one of these district courts is competent and may be chosen by plaintiff. To make this strategic choice, a variety of factors plays a role, such as the procedural practice including timing and earlier case law of the respective court or its tendency to appoint a court expert in technically complex cases or not. In this context, for a variety of reasons, it is noteworthy that the most prominent German first instance infringement courts, namely Duesseldorf, Mannheim and Munich, seem to compete with each other for acquiring cases and have developed a service provider’s mindset which is often helpful for plaintiffs.
THE MUNICH MODEL
Therefore, the Munich district court has since 2009 created an accelerated infringement procedure, a streamlined and focussed approach to resolving difficult and detail-driven patent infringement disputes. The key points of this accelerated procedure are two hearings on the merits and a strict deadline regime. With the service of the complaint, the defendant has, as a rule, only eight weeks to reply to the complaint. Some three to five weeks after this deadline an early first hearing is scheduled. At the beginning of this hearing, the Munich court renders orally its preliminary opinion on the case. This means that after about three months as of filing of the complaint, plaintiff (and also defendant) has a clear feeling for the chances of success of his case, serving as a good settlement trigger if a quick settlement is desired. In this context, the court explains its understanding of the technology in dispute, points out possible misunderstandings, indicates whether the production of certain proof may still be necessary and asks the representatives of the parties to further elaborate on certain aspects in a very focussed manner during the further course of the hearing and proceedings.
Usually, a deadline of about one month to file a related subsequent brief is set with the plaintiff after which the defendant is given another month to again file his reply. Further brief are only exceptionally accepted and, as a rule, extensions of deadlines will not be granted. If the court deems an expert opinion to be necessary, a court expert will be promptly commissioned (which may be even before the first hearing) in order not to lose more time than necessary. Usually, about two to four weeks after the deadline for the defendant’s reply a second (main) oral hearing is scheduled, after which a decision will be rendered within four to six weeks. This means that a (in Germany preliminary enforceable!) first instance decision (including an injunction) may be issued by the Munich court after about six to nine months as of the date of filing the complaint, leading to the conclusion that Munich currently is the fastest patent litigation venue in Germany.
ADVANTAGES
In summary, besides speed, further advantages of the Munich model are the early hearing as a potential settlement trigger and an early concentration on the key aspects of the dispute limiting any side shows and tactical manoeuvres raised by defendant. Drawn out battles on technical detail with private expert opinions of the parties have so far not appeared, according to the Munich judges.
About the author:
Dr. Tilman Müller-Stoy is a certified IP lawyer and partner with BARDEHLE PAGENBERG. He focusses
on advice and representation in patent litigation in all technical fields, including patent-relevant anti-trust law. He represents clients in patent infringement suits, in invalidation and opposition proceedings before the German Federal Patent Court, the German Patent and Trademark Office, the European Patent Office and the German Federal Court of Justice. He is frequently active in multi-national patent infringement suits (most of which relate to the U.S. and industrial standards) and preliminary injunction proceedings for patent infringement, as well as in so called vindication proceedings concerning the transfer of patent rights due to unlawful usurpation. He also has extensive experience in arbitration and mediation proceedings in patent disputes. Further, he advises in IP-relevant contractual matters, in particular licensing, and matters of employee inventions law.
Bardehle Pagenberg
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81675 Munich
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