Thursday, June 17, 2021

Munich may become the circuit with the most consistent patent case law in Germany if Judge Zigann is promoted and Judge Werner succeeds him

In 2019, on the occasion of its 10th anniverary of its Patent Local Rules, the Landgericht München I (Munich I Regional Court) commissioned an evaluation by the Max Planck Institute. The results became known last year. For the most part, they were pretty positive, but in my view, the respondents underrated the legal and technical competence of the Munich judges as compared to other German patent infringement courts, and I said so at the time.

Many respondents to the survey criticized inconsistencies between the lower court's decisions and those handed down by the Oberlandesgericht München (Munich Higher Regional Court), the regional appeals court--comparable to a U.S. appeals court for a particular circuit, though regional and higher regional courts in Germany are run by the states, not the federal government.

Consistency may already be on its way.

At the end of my post on the promotion of Judge Dr. Georg Werner to Presiding Judge, I mentioned that "[Presiding] Judge Dr. [Matthias] 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."

That scenario is more than plausible. Presiding Judge Konrad Retzer of the patent-specialized senate of the Munich Higher Regional Court will--based on what I've heard--retire by the end of the year. German judges can't "go senior" and still serve. When they reach the statutory age limit, their judicial career comes to an end. Just like Judge Retzer used to preside over the lower Munich court's patent-specialized panel before he moved up to the appeals court, his most plausible replacement is Judge Dr. Zigann, who brings a great depth of patent law expertise to the table--almost a decade thereof as the Presiding Judge of the court's Seventh Civil Chamber.

It's the opposite of a daring assumption that this will happen. In that case, the Seventh Civil Chamber will need a new Presiding Judge, and the court won't have to look far now that Judge Dr. Werner--previously Judge Dr. Zigann's deputy--has been promoted.

Today I've seen a clear sign that many German patent litigators are preparing for this scenario: a webinar organized by Munich's Center for Intellectual Property Law Information and Technology (CIPLITEC) drew a pretty large audience. To be fair, Zurich-based Professor Peter Picht is a gifted speaker who always has interesting information to share. But many listeners presumably wnated to learn about Judge Dr. Werner's views. He's not hearing patent cases at the moment, as he is presiding over a commercial law chamber that deals with other issues (such as design rights, if I understand correctly), yet took the time to deliver today's speech. Presumably he knows he's going to be a patent judge again in the very near term.

Today's presentation was a chance to find out where Judge Dr. Werner stands. To be honest, that's what I was primarily trying to figure out when listening. And the answer is very simple: Judge Dr. Werner stands 100% behind the Munich approach to standard-essential patent (SEP) injunctions as well as anti-antisuit injunctions.

As a side, Judge Dr. Werner previously had voting rights when he was a member of a judicial panel, and quite often he was the judge-rapporteur who authored the per curiam. This includes last September's Nokia v. Daimler SEP injunction.

Every single time Judge Dr. Werner took a position today on SEP case law, not only in connection with Nokia v. Daimler but also the availability of anti-antisuit injunctions, that is not only materially, but totally, consistent with Judge Dr. Zigann's views.

Presiding Judge Tobias Pichlmaier of the Munich I Regional Court's Twenty-First Civil Chamber is perfectly aligned with Judges Dr. Zigann and Dr. Werner. He granted the first Munich anti-antisuit injunction, and I've seen how he approaches SEP cases. There was a time when plaintiffs viewed the Munich I Regional Court as a bit of a lottery: if their case got assigned to the Seventh Civil Chamber, they were optimistic and they knew the case would be decided within about a year; but if the Twenty-First Civil Chamber got the case, everything would take longer and patentees faced an uphill battle. Not so now. Both the Seventh and the Twenty-First Civil Chamber are consistent and comparably efficient.

Very soon, Munich will have a "triumvirate" between the appeals court (then under Presiding Judge Dr. Zigann) and the lower court (with Presiding Judges Pichlmaier and Dr. Werner).

On the appeals court, Judge Dr. Zigann could be outvoted by his two side judges. But presiding judges have a lot of influence and authority. Judge Dr. Zigann won't be bound by precedent shaped by Judge Retzer. If he gets at least one sidge judge to vote with him, he can simply overrule any earlier decisions, such as the amount of security deposits required for the provisional enforcement of patent injunctions. This works differently in the U.S., where it would require an en banc decision (full-court review).

Munich's popularity as a patent litigation venue is likely to grow as a result of these likely developments.

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