The German patent reform movement has miles to go, but it is far from beaten. Last weekend I commented on the submissions (feedback to a patent reform proposal) Germany's Federal Ministry of Justice and Consumer Protection published last week, and noted that the submission by the BDI (Federation of German Industries, an umbrella association of associations) appeared to isolate the automotive industry by taking an injunction-friendly (though troll-critical) position. I pointed out that in reality there's a strong interest in patent injunction reform across different segments of the economy.
In a development that is as surprising as it is telling, the BDI's paper has been withdrawn from the website of the Federal Ministry of Justice and Consumer Protection. The only plausible explanation is that some of the pro-reform forces succeeded in convincing the BDI that it was not speaking for the entirety of German industry associations minus automotive and information & communications technology, but had merely been hijacked by patent extremists.
The ministry would very much have liked the BDI to reach a consensus. A paper that wasn't supported by two major member associations wasn't exactly a consensus position--but the BDI portrayed it as the position of a vast majority of the German economy, which it simply wasn't (as I already made clear on Sunday).
This withdrawal represents a very significant setback for those seeking to preserve the status quo of (near-)automatic patent injunctions.
On this occasion, I'd like to clarify what I meant on Sunday by calling on all pro-reform forces to throw their weight behind the Max Planck Institute's (MPI) submission:
First, I meant the MPI paper as a whole, of which the proposed statute is an extremely important--but not the only--part. The document makes it clear what real-world issues that defendants are facing in German patent litigations are meant to be addressed by the proposed proportionality requirement. A proportionality requirement that the statute itself does not elaborate on will, of course, have to be accompanied by a rationale (a commentary provided by the legislature itself) that courts will rely on as they interpret the new statute. The combination of statute and rationale will determine the actual effect.
Second, there's nothing wrong with companies saying that they agree with everything the MPI paper says while some of the may still favor positions that go further and/or statutes of greater specificity. And different organizations will set different priorities. But the MPI paper could serve as a common denominator in an effort to overcome fragmentation.
Third, with the ministry having put forward a first draft that narrowingly redefines the word "(dis)proportionate" (vitiating it to the point that it merely applies to a few extreme cases at the outer margin of disproportionality), it is now critical to ensure that the statute will have scope for all (dis)proportionality theories that the law--and particularly EU law--allows. That's the most important breakthrough one can achieve now for the sake of balancing the system.
Fourth, while the ministry will obviously read--and most likely has already read--the MPI's paper attentively, it's key to consider that politics is not only about what is said, but also very much about who says it. If the ministry and the actual legislature (the Federal Parliament) see that there are strong signs of an economic majority supporting that position, then there is a potential for momentum of the kind that no academic paper can ever have without being backed by corporations and possibly other types of stakeholders.
Fifth, I wish to make clear that my proposal to adopt the MPI's paper as the common denominator of the pro-reform movement was not and is not intended to put it above academic write-ups on the subject of German patent injunction reform. The MPI's submission is simply my recommendation among those documents that were officially provided to the ministry in response to its first draft. I have heard rumors of confidential submissions, but a movement can only be unified behind a published position. Also, other documents commenting on, and suggesting improvements to, the ministry's first draft have been circulated. In fact, I wrote one myself that basically blends Art. 3 IPRED and eBay factor #2. But the pro-reform movement should now, ideally, rally behind a paper that was officially submitted to, and published by, the ministry.
The withdrawal of the BDI's injunction-friendly position may mark a turning point in the debate, and in the legislative process. A strong backing of a consensus position of an economic majority would be the best next step. The fact that the BDI had to retract a paper--not merely after having submitted it, but even after the government had published it!--is very encouraging. It creates a vacuum. The economic majority should fill that vacuum by major companies from different industries lending their collective support to a common-denominator position. The time has come to show the decision-makers at the ministry and in the parliament that only a few entrenched interests oppose meaningful injunction reform. The way to show it is to have an impressive list of supporters of a common position. Beyond the common position, anyone may still have--and communicate--further-reaching ideas. But you have to start someplace.
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