Friday, June 4, 2021

Monitoring patent injunction case law in Munich and Mannheim post-patentDEform: FOSS Patents premium service starting September 2021

Almost precisely two years ago, I made an announcement that led to my Brussels conference on component-level standard-essential patent (SEP) licensing in 2019. It was wildly successful and the first event with that particular focus.

Today I am also announcing something new that I plan to offer soon, and just like last time, I'm talking about it here early so I can get some feedback and input at the conceptual stage, such as via this blog's contact form. That also helped a lot last time. What I have in mind now has even greater potential, though.

FOSS Patents will offer a premium service keeping a close eye on patent injunction case law in Munich and Mannheim, the two agenda-setter patent litigation venues. Those reports will differ in three ways from the posts you find on this blog:

  • They won't be free of charge. It will be a premium newsletter.

  • Those articles will, however, be free of any activism. I won't criticize or applaud anyone, nor will I opinionate on anything that is said or done, other than assessing the likelihood of different outcomes. Non-judgmental information and statistics. I can easily deliver that, and have done it for various clients over the years, just not in public.

  • There won't be a narrow industry focus. It's about the legal questions, not the products or services at issue. So there'll be a multiplicity of relevant hearings and trials every week. Reports will normally go out to subscribers on the same day on which a hearing or trial took place or a decision was announced.

SEP and non-SEP cases will be evaluated separately for statistical purposes, as they raise distinct issues.

I will not use that material for any political purposes, but may authorize its use by others (there might even be an exclusive arrangement with a group of companies in that regard). I have reached out to key players on both sides (!) of the patent injunction debate already to explore whether they'd like to support this effort. The German patent reform will effectively get a "service patch" during the next term (after the September elections), as they ran out of time in the parliament to reconcile opposition proceedings (post-grant review by a patent office) and nullity cases (brought before the Federal Patent Court of Germany). Therefore, a further refinement of the patent injunction statute may indeed happen. I just want to provide hard and unbiased facts, and it will depend on the facts--not on me--which "camp" stands to benefit from them.

Confirmation bias won't be a problem either. Should the courts deny injunctive relief, or grant super-long workaround periods, more often than I would predict as things stand today, then I'll write about it. In that case, however, I might also have to adjust my venue focus as this would marginalize one or both of the southern fora, thereby creating opportunities for venues like Dusseldorf, Hamburg, Berlin, or Frankfurt...

Here's why I believe there will be significant demand for that monitoring service:

As IAM reported a few days ago, "Germany is the world's most plaintiff-friendly patent jurisdiction" as "[c]lose to 50% chose it as the jurisdiction in which they would most like to litigate as or on behalf of a plaintiff." Unsurprisingly, "[t]he availability of injunctive relief" was the number one reason, "followed by the experience of the country’s judges and speed to trial." The survey suggests that jurisdiction will stay number one and may even extend its lead.

Next week's "patentDEform", which I described yesterday as a "deform-not-reform" bill, is not going to reverse that trend in the slightest. Defendants are, however, certain to make more elaborate proportionality arguments than in the past. The lawyers I quoted in March 2020 on a German patent reform proposal also expected proportionality discussions, though they didn't predict much to change (the draft legislation on the table at the time was just about as bad as the current one for information and communications technology companies, though not as bad for the chemical and pharamceutical industries). Come September, defendants will have had enough time to react to the legislative measure and obtain additional expert reports. And by then pretty much everyone in a courtroom at a patent trial will have been fully vaccinated.

Theoretically there could also be some cases in which the court would have to determine ongoing compensation for continued infringement. You can find that part of the new statute on Professor Thomas Cotter's Comparative Patent Remedies blog. I don't anticipate an award of ongoing compensation to actually happen anytime soon, but parties will sometimes argue over it just in case it becomes relevant.

The legal standard for staying infringement proceedings over invalidity arguments will not change. However, the legislation calls on the Federal Patent Court of Germany to hand down preliminary opinions after six months.

A French proverb best describes this outlook: "Plus ça change, plus c'est la même chose." The more things change, the more they stay the same...

So my plan is to help the global patent litigation community stay abreast of the evolution (not revolution) of German patent injunction case law in the post-patentDEform era. The two venues I consider the absolute agenda setters are Munich and Mannheim. With the greatest respect, Dusseldorf is no longer where the action is. It's still a nice venue for medium-sized companies and some other plaintiffs, and remains popular for video codec enforcement, but the truly exciting stuff happens further down south.

The judges whose cases I cover will get free subscriptions, of course. In general, I believe the Munich and Mannheim courts will become even more popular among patent plaintiffs as a result of this more extensive coverage written for a professional audience, including many "forum-shoppers."

The first time a loyal reader encouraged me to think about a subscription model was in 2012. He told me that in-house litigation counsel in many companies, most of which didn't even have a particular interest in smartphone patent disputes, read my blog to stay informed of developments, and this included U.S. companies who sue or defend in Germany. The time has come to actually make this happen, and "patentDEform" appears to be just the right occasion on which there'll be an increased appetite for information of that kind.

This blog is still going to provide tons of free (and opinionated) content, especially on policy topics and tech antitrust cases. Should there be any potential conflicts, I will figure out how to resolve them fairly and transparently. I don't anticipate any problems. As long as there are enough subscribers, no single subscription, no matter how large, will constitute any conflict of interest. It is true that the commentary here on FOSS Patents tends to be rather defendant-friendly, but the premium service will be equally essential to plaintiffs and defendants (and their outside counsel). Should any side benefit from it to a greater extent, it would actually be plaintiffs, as they have to make a number of choices before and when bringing litigation.

There is, by the way, a (free) equivalent in the Western District of Texas: Winston & Strawn's Waco Watch blog.

Please let me know what you think, and what you're hoping get out of my upcoming premium monitoring service!

Share with other professionals via LinkedIn: