Four months ago I drew attention to Samsung's recruitment of retired (but still occasionally-active) UK appeals judge Sir Robin Jacob as an expert witness in a U.S. patent dispute with Ericsson, only a few months after he upheld an unprecedented decision by a lower court and made things even worse for Apple. Other commentators also thought that this was a "less than savvy public relations move by Samsung".
Today I found out, to my surprise, that Google has a German appellate judge on its payroll in connection with the Microsoft v. Motorola FRAND contract case in Seattle scheduled to go to trial toward the end of August.
Just like Samsung should not have hired Sir Robin under those circumstances (maybe a year or two later, but not so shortly after his anti-Apple ruling), I believe Google should have selected a different expert on the German Orange-Book-Standard case law on injunctions over patents subject to compulsory licensing (and on the more general subject of recovery of attorneys' fees in German civil lawsuits).
Besides serving as a paid expert in this litigation and other freelance work, Professor Dr. Maximilian Haedicke has two jobs. On the one hand, he's an IP-specialized law professor at the University of Freiburg. On the other hand, he's also serving -- still as of today -- as a judge on the Zweite Zivilkammer (Second Civil Chamber) of the Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court), which according to his expert reports "handles the majority of the appeal proceedings in patent infringement cases in Germany" (the jurisdiction in which "[a]pproximately 2/3 of all patent infringement law suits in Europe are litigated").
Yesterday there were a couple of filing deadlines in the Seattle FRAND case, and I'll do at least one more post on the latest submissions. I have uploaded to Scribd three exhibits relating to Professor Haedicke's work on Google's behalf:
expert report on German Orange-Book-Standard case law (which discusses specific aspects of the Motorola-Microsoft H.264 dispute in Mannheim and suggests Microsoft should have chosen a different legal strategy in Germany in order to avoid the issuance of an injunction)
rebuttal expert report on recovery of attorneys' fees by parties prevailing in German proceedings (which discusses specific numbers relating to Microsoft's cost of defending itself against Motorola's assertions of H.264 declared-essential patents)
excerpt from deposition transcript (where you can see that he cited attorney-client privilege in refusing to answer one or more questions)
In both expert reports Professor Haedicke discloses his compensation for his work on Google's behalf:
"My hourly billing rate for this matter is 350 Euros [$455 based on the current exchange rate] per hour. My compensation does not depend on the opinions I express our [sic] the outcome of this litigation."
In a formal sense he's been hired by Motorola's law firm, Quinn Emanuel, but QE obviously doesn't represent its client "pro bono" -- Mountain View picks up all costs:
"I have been instructed by Quinn Emanuel Urquhart &: Sullivan L.L.P. to act as an expert witness on behalf of Motorola in this action regarding patent law, injunctions and standards-essential patents (SEPs) in Germany."
Motorola brought its German patent infringement cases against Microsoft in Mannheim. Microsoft countersued in Munich and Mannheim. None of the related appeals are or could be heard by the Düsseldorf court. These are three different circuits.
Motorola did, however, sue an Apple subsidiary (Apple Retail Germany GmbH, which operates the official German Apple Stores) in Düsseldorf, where Apple subsequently filed a design-related infringement action against Motorola's Xoom tablet. Furthermore, as Professor Haedicke notes, most European patent infringement cases are brought in Germany, and most of the German cases in Düsseldorf. So it's far from impossible that some patent infringement cases involving Google would reach Professor Haedicke's appeals court. I guess (in fact, I'm quite sure) he would then recuse himself. Maybe also if Microsoft is involved, given that his decision to let himself be hired by Google put him into an antagonistic position vis-à-vis Microsoft (which, by the way, brought a motion yesterday to preclude him from testifying not because of his role as a judge but because of the substance of his testimony, or lack thereof). But would he also recuse himself now from any or all SEP cases? Or would he consider his independence, at least potentially, compromised by the fact that he has taken rather partial positions in the Microsoft v. Motorola case?
Some German judges are simultaneously professors, but there are still plenty of knowledgeable law professors and other persons qualified to serve as experts on Orange-Book-Standard and attorneys' fees in Germany who are not currently serving and haven't served in the very recent past as judges.
For example, Microsoft's expert on German law is Professor Dr. Theo Bodewig. He's currently a professor at the Berlin-based Humboldt University and served as a judge on the Munich Higher Regional Court until 2011. I'm not aware of any Microsoft case that ever reached the Munich Higher Regional Court before 2012 (if there ever was anything, it wasn't noticed by anyone), and at any rate, a lot of time has passed since Professor Bodewig's work as a judge. That's the way these things should be done. Google and Samsung should learn from this example.
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