Germany is the world's most popular patent litigation venue, and last week's legislative decision does nothing to dissuade patent holders from enforcing their intellectual property rights in the largest EU member state. If anything, there may be a further shift from Dusseldorf, where I've only attended one patent trial so far (Huawei v. ZTE in 2013) and covered another (in 2020) from a distance. What happens there is usually uninspiring. The judges presiding over the two patent appeals divisions of the Dusseldorf Higher Regional Court made statements last year that suggest they may interpret the new injunction statute in a divergent way from the case law of the Federal Court of Justice, against the clear legislative intent. I don't think the risk there is high, but who would want to be the first patent holder to be denied an injunction after prevailing on the technical merits of a non-standard-essential patent? Or worse still, who would want this to happen as counsel?
In a way, others are beating Dusseldorf at its own game. What made Dusseldorf popular was not the quality of its judges but their plaintiff-friendly inclinations. I remember a conversation with a patent litigator who, back in 2007, described the tilted playing field he found there when trying to defend clients against infringement complaints. Judge Dr. Thomas Kuehnen ("Kühnen" in German) was the one who set the bar so high for staying infringement cases over invalidity contentions that he largely vitiated the invalidity defense. The rest of the country followed. But by now, other venues are more en vogue than the state capital of North Rhine-Westphalia. Some of the best Dusseldorf-based patent litigators attend more hearings and trials in Munich and/or Mannheim now than in their hometown. Second- and third-tier litigators still get a fair amount of Dusseldorf business from cases pitting small and medium-sized enterprises against each other, but the exciting cases are filed in Mannheim and Munich.
The lower court in Dusseldorf has three patent litigation divisions (4a, 4b, and 4c Civil Chamber), plus two patent appeals panels called "senates." Mannheim and Munich each have two patent-specialized chambers at the lower level, plus one appellate division above them (the appeals court for Mannheim is in Karlsruhe, and Presiding Judge Andreas Voss ("Voß" in German) is one of the most brilliant patent judges you could imagine). I would not be surprised if Munich and/or Mannheim started a third patent litigation chamber at some point in the not too distant future. The Chief Judge of the Munich I Regional Court, Dr. Andrea Schmidt, and the government of the state of Bavaria, which runs this court (unlike U.S. district courts, which are federal courts), are clearly committed to Munich's growing relevance as a patent litigation forum.
If and when the time comes for the Landgericht München I (Munich I Regional Court) to start a third patent litigation division, it won't have to look far to find a presiding judge for that new panel: Judge Dr. Georg Werner, who used to be Presiding Judge Dr. Matthias Zigann's deputy while serving on the Seventh Civil Chamber, was promoted in March and is now presiding over an IP-specialized commercial law panel. He won't get to hear patent infringement cases there. Those commercial law chambers have a special structure and modus operandi, so he's now dealing with other IPRs (presumably mostly trademarks). Still, his patent-related expertise is broad and deep. His doctoral thesis discussed the patenting of human body substances, and for three years he was a research assistant to the patent-specialized senate of the Federal Court of Justice.
I became aware of his promotion only by coincidence. A webinar program described Judge Dr. Werner as a presiding judge, and I thought they had confused him for Judge Dr. Zigann (or for Judge Tobias Pichlmaier of the Twenty-First Civil Chamberr). I checked with the court, and the press office told me they haven't opened a third patent litigation division, but they can confirm Judge Dr. Werner's promotion.
Over the years I had seen him in action on so many occasions that I find it hard to imagine he's not hearing patent cases now. It may take him a while to get used to it, too. At least he's still a part-time lecturer on patent law at the University of Bayreuth. But I'm sure he'll have the opportunity again to decide actual patent cases, and Munich is the place to be when it comes to patent enforcement. Two other judges serving on the Munich court's patent-specialized panels also have a fairly high profile in the patent law community: Judges Dr. Ann-Kristin Fricke (who also has significant antitrust expertise) and Dr. Hubertus Schacht.
Then, if the lower court created a third patent litigation chamber, the appeals court might have to set up a second patent-specialized senate, just like in Dusseldorf. Alternatively, Judge Dr. Zigann might move up to the appeals court in the not too distant future, and then Judge Dr. Werner could replace him as the Seventh Civil Chamber's presiding judge...
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