In the most formalistic sense, the German patent reform process will only begin when the federal government (with the Federal Ministry of Justice having the lead on this subject) officially relays its legislative proposal to the country's two legislative bodies, the Bundesrat (Federal Council), which could theoretically veto it (though its veto would be easily overruled) and the Bundestag (Federal Parliament). Despite the corona crisis, that's still likely to happen before the summer hiatus.
But in political terms, it's game over for the pro-reform camp. (I was going to say "pro-reform forces," but they're far too weak to justify that label.)
Merkel's party, the nominally conservative Christian Democratic Union (CDU), has already decided to support in the parliamentary process what the ministry outlined back in January (led by the junior coalition partner, the center-left Social Democratic Party). The ministry made it clear that it merely sought to clarify the law as it stands, and leading German patent litigators have confirmed this blog's analysis that it won't change anything, or only have minimal impact at best (which took some of the pro-reform people weeks or months to understand, and some are so analytically challenged that they haven't even grasped it by now and probably never will). The CDU definitely wants to preserve Germany's system of (near-)automatic patent injunctions across all industries regardless of complaints by automotive and other companies over a dysbalance. Only extreme cases that legally qualify as abuse should give rise to further analysis; contrary to Article 3 of the EU's Intellectual Property Rights Enforcement Directive, the CDU opposes a mandatory proportionality analysis.
I can't provide verbatim quotes here because of a request to treat certain statements confidential, though a WebEx conference call with two members of parliament, three parliamentary advisers, and about two dozen industry representatives on the line is a semi-public event on the bottom line, as the organizers well recognized. (Their insistence on a somewhat confidential treatment is undemocratic at best, unconstitutional at worst.)
The "debate" is now about minor editorial changes that won't impact the outcome of a significant number of cases and, therefore, won't put defendants in a better position when negotiating settlements.
The formal vote will probably be held in the fourth quarter of this year, or maybe in early 2021. There will be new elections in the fall of 2021, so if the fallout from the corona crisis requires the executive and legislative branches of government's nearly-undivided attention for several more quarters, discontinuity might derail the process, which would be preferable over the kind of decision that would be made during this term without the slightest doubt.
It wouldn't have been impossible to convince the Federal Parliament of Germany of the need for a paradigm shift away from the "Property Rule" (which the CDU still seeks to uphold). I was one of only two activists to achieve a unanimous resolution (against software patents) by the same legislative body in 2005, and in 2013 a similar resolution was adopted thanks to the late Jimmy Schulz. But the people advocating proportionality are, by and large, political novices who lack almost everything it takes to overcome the mendacious but effective resistance by the likes of Siemens, Nokia, and Ericsson. Germany's pharmaceutical and chemical industries also seek to preserve the status quo, but with a more intelligent and differentiated approach it would have been possible to address their (legitimate!) concerns over collateral damage from a statute favoring the interests of makers of highly multifunctional products.
The performance of those pro-reform advocates is more pathetic than anything I've ever seen in a comparable context (apart from the fact that they got the process started at all, which is remarkable but will ultimately be pointless). They have no one to blame but themselves. I know that some of them will try to spin-doctor their defeat into a victory, but you can all rest assured that this blog is going to tell it like it is.
The influence of patent trolls on both the Federal Ministry of Justice and the Federal Ministry of Econmics is shocking. Sisvel was the only company invited to a roundtable by the former (other companies were only allowed to participate to the extent their employees represented industry bodies), and Fraunhofer advises the latter. If the pro-reform camp wasn't as uncapable as it is, it would have been vocal about this issue, but weaklings don't win ball games. (A number of them are so unbelievably clueless and incompetent that the verb "to orchestrate" isn't even part of their political vocabulary; they play the game at a lower level than high school students campaigning for a local cause.)
So the problem will persist, and many will suffer. A solution is not going to come during this legislative term short of some German courts handing down spectacular patent injunctions this year that would lead to second thoughts among Berlin decision-makers. As I said before, the best scenario of those that aren't entirely unrealistic would be for the process to be derailed by corona like so many other initiatives, but most likely this will just go through as a low-priority item that will be considered uncontroversial because those who disagree don't have what it takes to make their presence felt and their positions clear. In the event of adoption in 2020 or 2021, those who want meaningful reform will have to go back to the executive and legislative branches of government next term and push for an upgrade. Additionally or alternatively, some might opt to challenge Germany's (near-)automatic patent injunctions under EU law. Just like Germany's disastrous Orange-Book-Standard approach to standard-essential patent (SEP) injunctions never got fixed within Germany until the European Commission and, especially, the Court of Justice of the EU set the record straight, the wider problem of automatic patent injunctions might also be solved through litigation--not legislation, and much less through national case law--somewhere further down the road.
Where things stand now, any pro-reform advocacy is futile. No one can help a bunch of misguided companies that obsequiously thank their government for backing mostly foreign patent trolls and failed businesses increasingly reliant upon a troll-like business model. I had actually started to prepare an initative but decided to fold it before it got off the ground because it's pointless under the circumstances, and I have more exciting and promising things to do, part of which you'll read about soon. That said, I will continue to comment on the process, but this blog was never intended to influence German politics--as its language demonstrates.
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