Monday, August 31, 2020

Will the Dusseldorf Regional Court violate the German constitution at this week's Nokia v. Daimler trial through insufficient COVID protection?

This is already the fifth post raising the issue of insufficient coronavirus prevention measures at patent trials. Here's a list of the previous four article on this issue:

I was actually looking forward to this week's Huawei v. Nokia FRAND/antitrust and Nokia v. Daimler patent infringement trials at the Landgericht Düsseldorf (Dusseldorf Regional Court). I'm quite confident Huawei is going to prevail over Nokia, obligating the latter to make an exhaustive component-level licensing offer on FRAND terms. Also, there's a possibility of the court referring to the Court of Justice of the EU a set of component-level licensing questions raised by the Federal Cartel Office of Germany. Thursday could mark a tipping point in the "automotive patent wars."

But no patent or FRAND/antitrust case is worth taking the risk that people will die.

Dusseldorf is the capital of the state of North Rhine-Westphalia, whose prime minister (the German equivalent to a governor of a U.S. state) Armin Laschet has failed miserably to take decisive action to contain the COVID-19 pandemic--a pathetic failure that most likely doomed his aspirations to succeed Angela Merkel as chancellor (he was actually on track, and had succeeded in building the broadest alliance within his party). Recently Mr. Laschet's state government has tried to regain some of the electorate's trust, but all in all, North Rhine-Westphalia is in bad shape. And that includes its court, which hears more patent cases than any other court in the whole of Europe, and is run by the state (unlike U.S. district courts, which are federal courts).

Huawei v. Nokia is a relatively small case: one plaintiff, one defendant, and presumably no intervenors. But Nokia v. Daimler is going to be huge, with approximately 50 people or more being in the courtroom at the same time. I hope things are still going to improve in the days ahead. Otherwise, there's a clear and present danger of a superspreader event should just any one person in the room be coronavirus-positive. Infection numbers have recently been climbing up again in Germany--and in North Rhine-Westphalia.

The Dusseldorf Regional Court's current COVID-19 prevention rules are a disgrace. Totally irresponsibly, the court merely declares covering one's mouth and nose "desirable" (not mandatory). There's nothing in the rules about minimum distance, or about ventilation. To add insult to injury, they have a rule that denies access to the courthouse to those who have COVID symptoms or have during the last 14 days been "in close personal contact" with a corona-positive person. What does "close" mean in this regard? It simply means the court isn't serious about preventing the spread of the virus. They just want those patent lawsuits to generate huge amounts of court fees and to contribute, through travel of outside counsel, to the local economy. That's not a conspiracy theory: the state government of North Rhine-Westphalia is pretty open about its economic interest in attracting patent litigation to Dusseldorf.

But the Dusseldorf Regional Court must tread carefully in light of a decision that the country's top court, the Bundesverfassungsgericht (Federal Constitutional Court), handed down yesterday (Sunday, August 30; case no. 1 BvQ 94/20).

The key holding is that Art. 2 of the German Basic Law (the nation's de facto constitution), which guarantees every person's right to life and to safety from bodily harm, imposes a duty to protect ("Schutzpflicht") on the government. Needless to say, the judiciary is one branch of government.

The German appellate system is not as straightforward as the one in the U.S., where the Supreme Court is the highest court and basically any federal lawsuit could end up there. In Germany, the Federal Constitutional Court hears only constitutional complaints (which may even originate from lower courts, or be brought against administrative decisions), while key questions of law in other fields are reviewed by some other federal courts. Patent cases can go up to the Federal Court of Justice, but constitutional complaints of any kind can be lodged with the Federal Constitutional Court.

What happened this weekend is that the Federal Constitutional Court had to adjudge a motion for emergency relief in connection with a Berlin demonstration against governmental corona prevention measures. I totally disagree with the protesters, as do more than 90% of the German population, but I wish some German judges would make more of an effort to set themselves apart from conspiracy theorists and other nutheads.

The Federal Constitutional Court denied the motion, which sought to restrain the state government of Berlin. In doing so, the court had to resolve a conflict between two constitutional principles: the right to hold demonstrations (which obviously ranks pretty high), and the right to life and safety from bodily harm. The court held that the constitution imposes a duty on government to protect citizens from death and bodily harm, and that duty can outweigh the right to demonstrate.

The decision discusses certain measures taken, such as a requirement to wear masks or, in the alternative, to keep a minimum distance. Note that the demonstration took place on streets--in an indoor setting, such as courtroom, it actually takes both (masks and distance) to be reasonably safe, but that's not what the court had to address yesterday.

The order also cites the governmental Robert Koch Institute's analysis of the ability of masks to slow down (at a minimum) the spread of the virus.

The Dusseldorf court has a duty to protect everyone attending its hearings and trials, including members of the general public (like yours truly). Its current rules fall far short of what's needed when you have dozens of people in the same courtroom for a long day.

I wish to thank the Dusseldorf-based IP law firm of Löffel Abrar for bringing the Federal Constitutional Court's decision to my attention via Twitter. The point they made in their tweet is that courts should allow participation in hearings and trials via videoconferencing. While that is correct, I noted that in practice it doesn't solve the problem in Germany, where courts can't require everyone to participate electronically and, as a result, pretty much all lawyers show up. In my observation, those who participated in some recent Munich patent trials via videoconferencing were largely people who didn't show up at previous Nokia v. Daimler trials anyway. Therefore, videoconferencing makes only a negligible contribution (if any) to a solution. The problem is that only half a dozen of lawyers actually speak at a Nokia v. Daimler kind of trial, but you have dozens of them in the room regardless. It obviously generates more billable hours to travel, and it looks like a strong commitment to the case--but it's a bad thing to do in the midst of the COVID-19 pandemic.

A Nokia v. Daimler kind of trial simply can't be held in a regular courtroom under the present circumstances. If it comes to worst, courts may have to rent large conference rooms at hotels. In Munich, there's one room that belongs to the Munich Higher Regional Court and is large enough even for this kind of purpose, but it's on a prison compound and usually reserved for criminal trials. I don't know what they can and will do in Dusseldorf, but should my constitutional rights not be respected on Thursday, I will definitely seek advice from lawyers specialized in constitutional law. Yesterday's ruling by a three-judge panel of the Federal Constitutional Court, led by its president, leaves no doubt that the Dusseldorf Regional Court has a constitutional duty to protect everyone who will enter the courthouse, from the moment we walk through the door. Should the court shirk that duty, a constitutional complaint may be inevitable.

Share with other professionals via LinkedIn: