Wednesday, September 6, 2023

First-ever UPC preliminary injunction hearing held in Munich: decision scheduled for September 19

After two court sessions that exclusively served the purpose of swearing in judges and a video conference hearing on a validity challenge, the first "real" patent infringement hearing in the history of the Unified Patent Court (UPC) started yesterday as the Munich Local Division heard one of the 10x Genomics v. NanoString cases before it.

On this special occasion, let me show you not just one but even two pictures of the panel--standing as well as seated--that I took before the start of the session (from left to right: Judge András Kupecz (Netherlands), Presiding Judge Dr. Matthias Zigann (Germany), Judge Tobias Pichlmaier (Germany), and Technical Judge Eric Enderlin (France); click on an image to enlarge):

The language of the proceedings was German. The building (Denisstr. 3) is primarily used by the Munich II Regional Court, and for purely administrative purposes by the Munich Higher Regional Court, and now hosts the most popular UPC Local Division. In case you're wondering what the difference between the Munich I and II Regional Courts is: Munich I is the court for cases for which Munich proper is the forum, while Munich II hears cases from the surrounding areas. Only Munich I is among the relatively few German regional courts with which patent infringement actions can be filed.

There is limited capacity for the media and the general public, though the UPC transmits a CCTV signal to a second room on the same floor, which is called an "overflow room" (a term also used by U.S. federal district courts).

Plaintiffs 10x Genomics and Harvard are represented by Bardehle Pagenberg's Professor Dr. Tilman Mueller-Stoy ("Müller-Stoy" in German), and defendants by Bird & Bird's Oliver Juengst ("Jüngst" in German).

After a full day yesterday, the hearing continued this morning. The decision will be announced on September 19 after another PI hearing involving the same parties and a different patent from the same family. That other patent has already been litigated successfully before the Munich I Regional Court.

By just watching Judge Dr. Zigann's initial outline of the Court's preliminary assessment of the case, one wouldn't have thought that this was a premiere for the UPC as a whole and its Munich Local Division in particular. But there were signs of that event being special. For example, Judge Andreas Mueller ("Müller" in German), who used to preside over the Munich I Regional court's 21st Civil Chamber for many years and has been presiding over a different panel (which hears antitrust and copyright cases) for seven years was in the audience. Given the tremendous popularity of the Munich Local Division, more judges are needed and I believe he'd be a great candidate, as would be some others: they have quite a talent pool in Munich.

At this early stage, all those UPC hearings and trials inherently raises legal questions of first impression. At some point there will be well-trodden paths, but at this point even such fundamental questions as whether the moving party can modify its prayer for injunctive relief during a PI hearing must be answered for the first time in UPC history.

In the absence of UPC case law, the EU's Intellectual Property Rights Enforcement Directive is referenced more frequently than in patent infringement proceedings in national courts.

Most patent trials in German courts last only a few hours. This one took 1.5 days and it was "only" a PI hearing. But I can see why the judges want to analyze the matter carefully and ensure that the defendant's right to be heard is fully respected. From what I heard, defendants had to do most of the talking today, and what the court said yesterday also served to indicate that a PI may very well issue in this case.

The court tends to agree with plaintiffs' proposed claim construction, and non-technical defenses (such as pointing to a parallel U.S. antitrust litigation) did not seem to get much traction, but let's await the written decision.