The Munich I Regional Court (Landgericht München I) is my subjective "Technology Court of the Month" (no matter how often I disagreed with it on other issues, which may happen again anytime) as it handed down two key decisions in February that have the potential to make tech law history with repercussions throughout and potentially beyond the European Union:
the 21st Civil Chamber's preliminary reference to the European Court of Justice of a question concerning the availability of preliminary injunctions over battle-untested patents (which deserves five stars for its clever strategy and persuasive implementation, but hopefully won't lower the bar for patent PIs) and
the 37th Civil Chamber's preliminary antitrust injunction against Google's vertical cooperation with a governmental health portal to the detriment of private-sector health information publishers. I translated most of the 28 pages on the day the decision was announced, and went back a week later to finish it.
This post focuses on the Google antitrust case.
I asked the press office of the Oberlandesgericht München (Munich Higher Regional Court) yesterday whether Google's appeal already had a case number and, maybe, a hearing date. They said an appeal had not been filed yet. But I'm sure that's going to happen shortly. If Google's PI appeal failed, it would theoretically still be possible for the full-blown main proceeding to have a different outcome, but it would be unlikely in this case, where the facts are pretty straightforward and the legal questions are crystal clear. However, in the main proceeding Google would be able to seek the equivalent of cert, while the regional appeals court is the final destination on the PI track.
I'm admittedly biased here because my own app development company could sue Google (and Apple) in Munich with direct references to certain holdings in NetDoktor v. Google. Given my own interest in antitrust action over gatekeepers using the critical nature of public health as a pretext for treating web publishers (in the NetDoktor case) and app developers (both Google and Apple) unfairly, it's all the more reassuring to see that totally impartial experts, too, heap praise on the NetDoktor PI decision:
Professors Justus Haucap (an economist the former chairman of Germany's Monopoly Commission, which advises the federal government on antitrust matters) and Rupprecht Podzsun (a legal scholar who is by now the undisputed number one among German competition law professors with respect to technology markets) awarded five stars to the Munich decision in the latest edition of their competition law podcast.
Both professors teach at the University of Dusseldorf. I met Professor Podszun at his previous university (Bayreuth) in 2014. That day I also had the honor to speak at his then-university alongside Judge Dr. Klaus Grabinski of the Federal Court of Justice about certain patent litigation topics.
In that podcast on the Munich NetDoktor v. Google decision, the professors agreed that the German federal government effectively became an economic operator by running a health information portal at taxpayers' expense, competing with private-sector offerings on the very opposite of a level playing field.
They note toward the end that even the half-hour duration of that podcast wasn't sufficient to highlight all that's remarkable about the well-reasoned ruling. But they managed to touch on various aspects, including the one I care about most: that the critical nature of health information doesn't serve to justify forcing or keeping high-quality offerings out of a market. The vertical cooperation challenged in NetDoktor was formed and launched last year, but even the COVID-19 pandemic must not be used for a pretext. The rule of law does not get infected by any virus.
Legal industry news service Juve (whose English-language spinoff Juve Patent I sometimes link to) reported on who represented the parties. The winning firm is Hausfeld, a firm with offices in the United States and Europe. In the U.S., Hausfeld focuses primarily on damages claims, and is suing Google on an indie app developer's behalf in a parallel case to Epic Games v. Google (Northern District of California). According to Juve, NetDoktor's lead counsel is Dr. Ann-Christin Richter. It was apparently the first time (but I guess not the last) for Hubert Burda Media, the media conglomerate that owns NetDoktor, to retain Hausfeld, and Hausfeld partner Professor Thomas Hoeppner ("Höppner" in German) has for years been counsel of record to a couple of publishers' associations of which the Burda group is a key member. Notably, Professor Hoeppner represented complainants against Google in the DG COMP investigation that resulted in the Google Shopping decision.
When the Supreme Court of the United States allowed the Pepper v. Apple class action over elevated App Store payment commissions to go forward, Hausfeld took a pro-developer position: Taking a Bite at the Apple: Ensuring a Level Playing Field for Competition on App Stores (which is not only about Apple's Apple Store, but also addresses the Google Play Store).
Now that I've digressed into App Store Antitrust again, I'd just like to highlight--in closing--that this has been my most popular tweet in quite a while:
This paper on the #AppStore #antitrust situation by @GeradinLaw focuses on EU law, but is worth reading regardless of jurisdiction. My own complaint against #Apple incorporates several pages from that paper by reference (market definition etc.). https://t.co/SO1IZ5kTKz— Florian Mueller (@FOSSpatents) February 20, 2021
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