Thursday, October 20, 2022

Fervent supporter of automatic injunctions to preside over German-dominated Unified Patent Court; Judge Pichlmaier returns to the patent bench (Munich Local Division), Judge Zigann finally promoted

Here's my reaction to yesterday's announcement of the Unified Patent Court's judicial appointments:

  1. It comes as no surprise that Judge Dr. Klaus Grabinski of Germany's Bundesgerichtshof (Federal Court of Justice) will preside over the new (appeals) court. He devoted a lot of time to the UPC's preparations, which is now paying dividends. And it makes sense to appoint a senior (but not too old) judge from the top court of the European jurisdiction where the vast majority of all European patent infringement actions are filed.

  2. While Judge Dr. Grabinski has been described as very likeable (and I, too, have only positive things to say about the conversation I had with him eight years ago after we were on the same panel and left the city of Bayreuth on the same train to Nuremberg), make no mistake: he's a patent enforcement hawk.

    No judge made as much of a lobbying effort as he did to dissuade the German government from softening the country's automatic patent injunction regime. There was a government roundtable in the spring of 2019, in the building of the Federal Ministry of Justice in Berlin, and he told ministry officials how wonderful and well-respected Germany's patent judiciary was and that the automatic injunction was a bedrock of that success. Then there was a conference at which he urged patent professionals to make their presence felt during the legislative process.

    Finally, Judge Dr. Grabinski seized an opportunity to declare the new injunction statute's references to third-party interests rather meaningless by saying that the same standard as the one for a compulsory license would apply. Meanwhile the Dusseldorf Regional Court (where Judge Dr. Grabinski's career as a patent judge once started) has issued two rulings that make any proportionality defense in cases where (in one of the two cases) a compulsory license may be available (or, in the other one of those cases, where a patentee is willing to grant a license) subject to an infringer's willingness (i.e., dedicated, good-faith efforts) to obtain a license.

  3. I would also expect him to have the German Sisvel v. Haier attitude toward defenses. The driving force behind Sisvel v. Haier was then-Presiding now-Retired Judge Professor Peter Meier-Beck. Dissenting opinions attached to a decision are not available to German patent judges to express different views--you always just see the names of all panel members without knowing how they voted--but I strongly doubt Judge Dr. Grabinski would have filed a dissent even if he could have.

  4. Another one of Judge Dr. Grabinski's wishes has been granted. I remember from our 2014 panel (we were the only panelists on that one) that someone in the audience asked a question about UPC appointments, and Judge Dr. Grabinski expressed his hope that appointments would be meritocratic as opposed to a politically-driven agreement to appoint comparable numbers of judges from each UPC contracting state.

    Indeed, German judges are going to dominate the UPC at all levels. Put another way, the UPC is going to be more like the European Parliament, where German is the de facto lingua franca in some political groups (surprisingly, that includes the Greens), than the European Commission, where the vast majority of the officials I've met over the years were from othercountries.

    The Court of Appeal of the UPC has seven members, two of whom are from Germany: Judge Dr. Grabinski as well as "Mrs. Career Overdrive" Judge Patricia Rombach, who started as a side judge in Mannheim, and two short years after becoming a presiding judge (succeeding Judge Andreas Voss ("Voß" in German) in 2017) was promoted to the Federal Court of Justice (her successor is Judge Dr. Peter Tochtermann)--and now to the top-level division of the UPC. I must admit I've never actually seen her in action, at least not as a presiding judge. The cases I watch typically get settled before they reach the Federal Court of Justice, and while she was a presiding judge, the cases I was interested in (Qualcomm v. Apple) were assigned to the other division (Second Civil Chamber, Presiding Judge Dr. Holger Kircher).

  5. The UPC also has a Presidium, three of whose seven members are German: President Dr. Grabinski, Judge Ronny Thomas (Dusseldorf Higher Regional Court), and Judge Dr. Tochtermann.

  6. What I didn't necessarily expect--but consider great news--is the return of Judge Tobias Pichlmaier (Munich I Regional Court) to the patent bench. Earlier this year, he was--at his request as far as I know--assigned to the court's antitrust division: a painful loss for the patent judiciary, and I say this although I disagreed with him in two contexts (I much preferred the stricter infection prevention measures imposed by Judge Dr. Matthias Zigann; and I disagreed with both of them on how to determine the amount of the security to be given when enforcing a permanent injunction during the appellate proceedings). A couple of months after the reassignment, the European Court of Justice agreed with his preliminary reference on the standard for preliminary injunctions over battle-untested patents. I guess that achievement weighed very much in favor of his appointment to the UPC. In light of recent decisions in Munich and Dusseldorf, I again defended Judge Pichlmaier and his panel's (which included now-Presiding Judge Dr. Anne-Kristin Fricke) preliminary reference to the ECJ (really well-crafted) against criticism of being unhelpful. That criticism came from a lawyer who has lost some major cases in recent years, not only but especially in Munich, and his largest client was hit by a preliminary injunction in Hamburg.

    Welcome back, Judge Pichlmaier!

  7. The other judge on the Munich Local Division will be Judge Dr. Zigann. Surprise. Not.

    What was a surprise, however, is that he didn't succeed Presiding Judge Konrad Retzer (Munich Higher Regional Court, Sixth Civil Senate)--I couldn't have thought of a better choice than Judge Dr. Zigann. While the appeals court has not yet been able to confirm this officially to me, Juve Patent reports that Judge Dr. Zigann will divide his time between the UPC and the Munich Higher Regional Court, where as of next month he will preside over a new IP-specialized senate.

    Munich now matches Dusseldorf's two patent-specialized appellate divisions (civil senates) after previously matching its three patent-specialized first-instance divisions (civil chambers). While Dusseldorf gets more cases, Munich has become the most popular venue for smartphone and connected vehicle cases and increasingly also codec cases.

    According to Juve Patent, Judge Benjamin Kuttenkeuler--whom I've recently seen in action as judge rapporteur, and his decisions appeared very well-reasoned--is Judge Dr. Zigann's deputy and will fill in until a longer-term replacement has been appointed. It's also possible that we'll see another merry-go-round, such as Judge Dr. Werner of the 21stcivil Chamber taking over the 7th Civil Chamber (Judge Dr. Zigann, as whose deputy he once served) and Judge Dr. Fricke the 21st Civil Chamber.

    In terms of experience, Judge Anna-Lena Klein and Judge Dr. Hubertus Schacht appear the most obvious candidates to become the next patent-focused presiding judge in Munich. They're both very competent. Judge Dr. Schacht has been more active at patent law conferences, and I've seen him fill in as presiding judge for Judge Pichlmaier. He managed those hearings efficiently and smoothly.

  8. One of three Central Divisions will also be based in Munich. The first two judges to have been appointed to it are Judge Mélanie Bessaud from France and Judge Ulrike Voss ("Voß" in German) from the Dusseldorf Higher Regional Court.

  9. Germany has four (!) Local Divisions. I've discussed Munich. In Mannheim, the two Presiding Judges of the Mannheim Regional Court's patent-specialized divisions will serve on the Local UPC Division: Judge Dr. Kircher (who heard an Apple v. Ericsson case this week, and has half a dozen Ericsson v. Apple cases on his list for the next several months) and Judge Dr. Tochtermann. They both excel through their technical understanding especially in the field of radio frequency technologies, including but not limited to cellular standards and WiFi. And Judge Dr. Kircher is so eloquent that any of his impromptu speeches beats what most politicians read from a teleprompter.

    In Dusseldorf, Judge Bérénice Thom (from the lower court) and Judge Ronny Thomas (from the appeals court; he's Judge Dr. Kuehnen's deputy) will serve on the Local Division.

    With Dusseldorf having such a large pool of experienced patent judges, some of them will have to "commute": Judge Ulrike Voss serves on the Central Division in Munich; Judge Sabine Klepsch will join Judge Stefan Schilling (from the appeals court in Hamburg) on the Hamburg Local Division; and part-time judge Professor Maximilian Haedicke will sit on the Paris Central Division. Professor Haedicke is a recognized expert, but I believe he should (still) recuse himself from cases involving Google and Quinn Emanuel given certain historical ties.

  10. The best strategy for litigants will be to file complaints with a German Local Division and to select German as the language of proceedings, which practically guarantees that a German judge will be the rapporteur.