Thursday, January 27, 2022

Munich I Regional Court confirms reassignments: Judge Pichlmaier to lead antitrust senate, Judge Dr. Fricke promoted to preside over 44th Civil Chamber

Juve Patent was first to report that Judge Tobias Pichlmaier, who is still presiding for a couple more days over the Munich I Regional Court's 21st Civil Chamber (a patent-specialized division), will become the antitrust-specialized 37th Civil Chamber's new Presiding Judge next week, triggering one promotion and one reassignment among his current colleagues. He told Juve Patent that he personally requested this reassignment.

A spokeswoman for the court just confirmed that one as well as two other parts of that reshuffling to me:

  • Presiding Judge Dr. Georg Werner (presently 44th Civil Chamber) will replace Presiding Judge Pichlmaier on the 21st Civil Chamber.

  • Judge Dr. Werner's deputy on the 44th Civil Chamber, Judge Dr. Anne-Kristin Fricke, will be promoted to Presiding Judge.

Nothing is changing for now about the 7th Civil Chamber under Presiding Judge Dr. Matthias Zigann. I photographed the 44th Civil Chamber on the occasion of its first-ever hearing in November. Now you can see two of the judges presiding over the three patent-specialized divisions of the Munich court in that picture. Judge Dr. Zigann's face is probably familiar to many of you, either because you've been to his courtroom or have listened to one or more of his eloquent and always very well-structured webinar presentations. Seriously, you can't be professionally interested in German or cross-jurisdictional patent litigation and not know Judge Dr. Zigann...

Unlike Juve Patent, I don't have the slightest concern over the timing of this chain of reassignments. Without a doubt, the court's patent divisions will operate just as smoothly and efficiently as we know them. They have the talent pool there--and the expertise--to keep going at the same pace, and render high-quality decisions.

That is not to say that Judge Pichlmaier's career choice is not a loss for the patent divisions. Clearly, he's a great patent judge--and the only problem I ever had with him related to COVID prevention rules, where Judge Dr. Zigann, for instance, prefers to err on the side of caution, which I considered appropriate. Other than that, Judge Pichlmaier is brilliant. One can't blame him for being interested in more fields of law than just patents. I remember seeing him at the regional appeals court, the Munich Higher Regional Court, where he served on a non-patent division (called "senate" at that level).

My only concern is that Judge Meinhardt's appointment as Presiding Judge to the appeals court's 6th Civil Chamber could demotivate the patent judges doing such terrific work on the lower court. It's possible that Presiding Judge Meinhardt will be great, but the intuitively right thing to do would have been to promote either Judge Dr. Zigann or Judge Pichlmaier to the appeals court. Patent law is a highly specialized field, and there's nothing wrong even at the level of an appeals court to have maybe one judge on the panel who hasn't previously handled patent infringement litigation, but the presiding judge should know the subject inside out from Day One. Litigants and their counsel would also benefit from knowing more specifically what to expect from the appeals court. Just my two cents.

One may wonder whether Judge Pichlmaier's rather restrictive application of antitrust law to patent cases means the 37th Civil Chamber, which handed down some pretty interesting decisions (such as against Google and the German government last year), will have a more conservative perspective on competition law. I don't expect that to happen. A judge can be in favor of competition and at the same time be (or have been) reluctant to apply competition law expansively to patent cases--given that patents are government-granted time-limited monopolies by definition (also according to Article I, Section 8, Clause 8, of the United States Constitution).

Interestingly, Judge Dr. Fricke actually went in the opposite direction: after adjudicating antitrust cases for some time, she joined a patent-specialized division. I always considered her and Judge Dr. Hubertus Schacht the obvious front runners for the next promotion (and yes, I'd bet on Judge Dr. Schacht--a meticulous jurist who knows how to keep hearings efficient--should the court need a new patent-specialized presiding judge in the not too distant future).

I know from members of the German legal community that they were truly impressed with the quality of certain per curiam opinions Judge Dr. Fricke had presumably authored.

Judge Dr. Werner will get to spend 100% of his time on patent cases now, while the 44th Civil Chamber was originally set up as only "half" a patent division (in the sense of devoting only half of the judges' time to patent cases), though patent plaintiffs flock to the Munich court, so this may change.

Munich is set to become a key Unified Patent Court venue, too--with some of the same judges involved.

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