Wednesday, July 29, 2020

Irresponsible Munich judges provoked coronavirus superspreader event at today's Nokia v. Daimler patent trial: no masks, no minimum distance

I am shocked, disgusted, and concerned about my health because even the most basic rules for preventing the spread of the coronavirus were waived at a Nokia v. Daimler patent trial in Munich today, only because the court--as one of the judges explained--was so very eager to hold that trial. I can only hope that neither I nor anyone else got infected today. I will give further thought to the possibility of directing formal complaints to certain politicians and authorities. I furthermore wonder whether this might give rise to a retrial as today's trial was held under unlawful circumstances.

Most of my blog posts about Munich patent trials mentioned a judge whose panel is not at issue: much to the contrary, I commend Presiding Judge Dr. Matthias Zigann of the Munich I Regional Court's 7th Civil Chamber for taking a perfect set of precautionary measures at last week's Sharp v. Daimler trial. I arrived about one hour early, and it lasted five hours. It will come as no surprise that I felt relieved to take my mask off upon leaving the building. But it was undoubtedly warranted to wear masks, and everyone complied 100% of the time: the judges, the lawyers, the party representatives, and "the general public" (such as me). And, very importantly, there was plenty of distance between any two persons in the room. So, the court's 7th Civil Chamber does what it can to prevent infections, but its 21st Civil Chamber has a reckless patent-centric attitude that the government of the Free State of Bavaria, which actually took the lead in Germany with respect to corona policies, should be ashamed of.

I went to the Palace of Justice early this morning to attend a 9 AM trial (Nokia v. Daimler, case no. 21 O 3891/19 over German patent DE60240446C5 on a "hybrid automatic repeat request (HARQ) scheme with in-sequence deliver of packets"). Initially, everything looked just as proper as at last Thursday's trial. But then, at around 8:30 AM, I noticed that one of the technicians setting up audio and videoconferencing equpiment in the courtroom wasn't wearing his mask. I notified his supervisor or colleague, who then told him to put on his mask again. He did so, but only for a short while. At around 8:45 AM I asked the mask-refusing technician directly, as he was sitting quite close to me at the back of the room, and he walked by me several times at a close distance without a mask. He told me he "didn't know" what the rule was, and we would see when the judges were going to enter the room.

I immediately emailed a spokesman for the court, as well as one of the judges on today's panel. Nothing changed, though the spokesman came to the room (but at around 9:05 AM, when the court was already in session).

No judge or lawyer was wearing a mask. The approximately 35 maskless persons included three judges (Presiding Judge Tobias Pichlmaier and side judges Dr. Anne-Kristin Fricke and Mr. Schmitz), one court secretary, two audiovisual technicians, and (just stating the totals of in-house and outside counsel) eight Nokia representatives, eight Daimler representatives, and approximately 15 representatives of intervening suppliers. (There were more supplier representatives, but the others were sitting at the back of the room, where I was sitting, too, and on those 10 or 11 seats, all but one actually did wear a mask.)

There are smaller courtrooms, but it still wasn't large enough for almost 50 people under the circumstances of the coronavirus pandemic. In order to squeeze all those party representatives in, they allowed them to sit next to each other, except that the Nokia team kept the proper distance. The court had some small plexiglass panes installed here and there, but of a ridiculous size: their height was sufficient to prevent infections between laptops, but little more than that.

Back in the area for spectators, the legal minimum distance of 1.50 meters wasn't observed either.

That combination of neither imposing masks nor enforcing the necessary minimum distance is nothing short of a scandal.

At 9:19 AM, I emailed the court's president (chief judge), pointing out what was going on. Initially, nothing happened but roughly an hour and a half into the trial, Presiding Judge Pichlmaier finally imposed an unconditional obligation to wear masks (at all times, including when speaking), and police officers checked on distances between chairs in the spectators' area. It turned out that some people had brought in additional chairs. A fair amount of rearranging turned out necessary.

When the trial resumed, Judge Dr. Fricke gave an impassioned speech, seeking to justify the panel's irresponsible original decisions. While it is true that the court had taken some measures, such as ensuring that a window or a door would be open most of the time (in addition to electrical ventilation) and asking court staff to set up chairs for spectators at a proper distance (until others brought in additional ones; the judges could have prevented them simply by ensuring the presence of police officers instructed to enforce compliance with anti-corona rules), all that matters is the result. The result is that today's trial was a potential--but hopefully not an actual--superspreader event. The judges could have noticed from the bench that spectators were sitting too close to each other.

Judge Dr. Fricke stressed how eager the judges were to hold today's trial and to discuss some key legal issues in open court. No doubt about that, but the end of holding a patent trial that the world doesn't need (it's just one of ten German Nokia v. Daimler cases) now instead of, say, two or three months later in a more spacious room doesn't justify the means of compromising corona prevention. We're not talking about a habeas corpus type of issue that needs to be resolved as quickly as possible.

The risk of a superspreader was non-negligible. Most of the participants were from the states of Bavaria (of which Munich is the capital) and North Rhine-Westphalia (due to Dusseldorf being a major patent litigation venue). Both those states are still struggling with significant numbers of infections. Just yesterday, Markus Soeder, the prime minister (the equivalent of a governor) of Bavaria, explained to the general public that "the coronavirus is coming back, subtly but with a vengeance."

Last week, Judge Dr. Zigann noted that there was a corona-positive participant in a recent Federal Patent Court hearing (a court that is also based in Munich), but presumably thanks to precautionary measures no one got infected there.

At a time when the courtroom was sealed, one spectator--who wasn't wearing a mask at the time, though there was actually an obligation to do so in the court building--sneezed quite heavily. That's what happens outside a courtroom in which the judges waive some essential rules. Irresponsible.

As for the trial itself, the courtroom was sealed for the entirety of the FRAND discussion, which is rather questionable as even the presiding judge himself initially indicated that the court deemed only part of that to involve confidential business information. Anyway, what I learned from various sources is that the court didn't indicate any inclination. They discussed infringement, validity (where Daimler apparently had two pretty good arguments relating to the priority date of the patent-in-suit, and I understand Daimler's oral argument, delivered by Quinn Emanuel's Dr. Marcus Grosch, was extremely compelling), and FRAND, including the possibility of referring to the Court of Justice of the EU the questions raised by the Federal Cartel Office of Germany. Anything can happen when the court announces a decision in late September.

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