The number of patent cases filed at Germany's courts has long been falling. However, amid the decrease, Munich stands out for its success. The increasing complexity of patent proceedings – especially in SEP suits – means the amounts in dispute are lucrative. Munich Regional Court's role in anti-suit injunctions and the introduction of a third chamber for IP disputes means it is challenging long-established courts, such as Düsseldorf, as Germany's frontrunner for patent cases.
7 July 2021 by Konstanze Richter
Seven regional courts in Germany conduct hearings on intellectual property rights, which altogether recorded a total of 714 newly-filed lawsuits in 2020. This is around 9% fewer than in the previous year, where parties filed 789 patent suits. While the coronavirus pandemic has undoubtedly played a role, it would be wrong to blame the decline in patent cases solely on the pandemic. The combined case numbers of the three major patent courts have been falling for years.
However, the Munich Regional Court again saw its caseload multiply. Recently, the court surprised the public by opening a third chamber for technical property rights. These tend to include utility models, plant variety protection and employee invention rights.
According to a JUVE Patent survey of European patent courts, Düsseldorf, Munich and Mannheim continue to dominate the patent cases field in Germany.
With a total of 683 cases, the three courts accounted for a large proportion of the newly filed lawsuits in 2020. In the previous year, however, the figure was 3.5% higher, with the three courts recording 708 new proceedings.
Düsseldorf remains in front of its competitors. However, the court also recorded one of the sharpest drops of 18.4%, compared with the previous year. At 314, most proceedings conducted in Düsseldorf are patent disputes. The remainder concern utility models, employee invention rights and plant variety protection.
Over the same period, the Regional Court Düsseldorf’s three patent chambers settled 418 patent cases. This was either by judgment, or on other grounds.
Arguably the most significant series of proceedings concerned connected cars patents. The dispute between Nokia and Daimler dominated events at all three top German courts in 2020.
Furthermore, the presiding judge of Düsseldorf Civil Chamber 4c, Sabine Klepsch, attracted much attention in the patent community when she referred the question of whether there is an obligation to licence the suppliers of car manufacturers on a priority basis to the CJEU.
In May 2021, Nokia and Daimler settled their dispute through a licence agreement. The agreement also settles the CJEU proceedings.
Düsseldorf Regional Court continues to rule in numerous important patent infringement cases. This can be in mobile communications cases, such as the dispute between IPCom subsidiary Fipa against HTC over the 100A patent, or in major pharmaceutical cases. The dispute between Novartis, and Zentiva and Aliud Pharma over breast cancer drug Afinitor, is a prime example.
However, renowned Düsseldorf Regional Court patent judge Tim Crummenerl, who one lawyer described as “the number one in the first instance,” recently moved to the German Federal Court of Justice. The regional court is yet to announce a successor to the previous presiding judge of patent chamber 4a.
Currently, Crummenerl’s deputy Berenice Thom heads the chamber. IP experts respect her “technically excellent reasoned decisions”, says one lawyer. Many consider Thom the first choice to succeed Crummenerl.
Other Düsseldorf IP judges also enjoy great popularity in the legal community. One lawyer says Sabine Klepsch “cannot be praised highly enough”. Others describe her as a “clear, effective thinker” who is always “open to a clarifying legal discussion.”
Patent lawyers also praise Daniel Voß of Chamber 4b as someone who “gets to the bottom of things”, as well as being “outstanding” and “practical”. Thus, Düsseldorf remains a popular court for patent cases of all kinds.
However, steadily-rising numbers indicate that Munich Regional Court is increasing in popularity. In 2020, the court saw a total of 202 new infringement suits, which is 10.4% more than the previous year.
Thus, for the second year in a row, Munich Regional Court is ahead of Mannheim. Previously, the latter city’s court was the second-most popular location for patent cases. But over 2020, Mannheim Regional Court’s two patent chambers saw 128 newly-filed suits over technical IP rights. This is a decline of almost 22%, compared to 2019.
In the same period, the two Munich patent chambers ruled on 59 cases. Parties ended a further 83 cases for other reasons, such as settlement or through withdrawal of the suit. However, Mannheim Regional Court has not provided exact figures for these instances.
Recently, the important role played by Munich in anti-suit injunctions (ASIs) in global mobile phone battles has placed the court firmly in the limelight. Parties use ASIs to try to prevent their opponents from suing them in other countries. Chinese courts frequently issue ASIs, while Munich courts regularly respond with anti-anti-suit injunctions (AASIs).
The global patent lawsuit between Interdigital and Xiaomi shows the proportions such suits can reach. This case concerned an ASI obtained by Xiaomi from a Wuhan court. However, Munich Regional Court prohibited the Chinese mobile phone company from enforcing this in Germany through an AASI and an AAAASI.
In fact, the court went one step further. In their reasoning, the judges of the 7th Civil Chamber stated that any party filing for an ASI globally could be seen as an unwilling licensee. The consequence of such an action could be a sales ban in Germany.
Then, in April 2021, the Munich judges got even more creative. They issued an AASI against Huawei without the Chinese mobile giant having previously applied for an ASI against SEP holder and plaintiff IP Bridge in China. This is possible under German law if there is a so-called ‘danger of imminent action’ (in German: Erstbegehungsgefahr).
This case is a prime example of the Munich judges having to rule on increasingly unusual and complex issues. Another such example is that the Munich Regional Court recently asked the CJEU whether a court may refuse a preliminary injunction if opposition or nullity proceedings do not yet prove a patent-in-suit.
In addition, SEP holders Nokia, Conversant, Sharp and IP Bridge have kept the court on its toes with connected cars lawsuits against Daimler. The presiding judges of the two patent chambers have earned a good reputation in the patent community for complex SEP proceedings.
One patent litigator praises Matthias Zigann, presiding judge of the 7th chamber, for “conducting proceedings tightly and efficiently”.
Another says he has “outstanding expertise and excellent preparation of deadlines.”
Zigann’s colleague, Tobias Pichlmaier of the 21st chamber, impresses attorneys with his “very good preparation” and for “conducting proceedings competently.”
Although the number of cases in Mannheim is declining more sharply than in Düsseldorf, the court remains one of the most popular courts for patent cases in Germany. Indeed, it has played hosts to some lawsuits in the extensive patent dispute between Nokia and Daimler.
In one case, the Regional Court Mannheim issued an injunction against Daimler for infringing one of Nokia’s SEPs. Nokia could have enforced the judgment against a security deposit of €7 billion, the highest amount ever set by a German patent court. However, this was too big a hurdle. Mannheim was also a location in which Ericsson filed a suit against Samsung.
Patent litigators praise the extensive experience of the patent chambers’ judges. Holger Kircher, presiding judge of the 2nd Civil Chamber, is praised for conducting hearings “very confidently and knowledgeably” and “pragmatically”. He is also described as “very well prepared.”
Peter Tochtermann, presiding judge of the 7th Civil Chamber, is considered “very thorough”. One attorney describes him as the “new star in the patent sky.”
Observers attribute the success of the Munich Regional Court, in part, to the so-called Munich Procedure. Introduced in 2009, it shortens the duration of proceedings by means of a strict time limit. An evaluation of the procedure presented by the Regional Court in autumn 2020 shows the German patent community widely approves of the mechanism.
However, Munich has recently become a victim of its own success. The court’s popularity among SEP owners led to an increased workload, posing a threat to the promised speedy proceedings.
To relieve the two established patent chambers, Munich Regional Court president Andrea Schmidt announced last week that the court would create an additional patent chamber. The chamber will start its work in mid-August, with Georg Werner announced as the chairman. Previously, Werner acted as deputy to Matthias Zigann at the 7th Civil Chamber.
The move makes Munich the only regional court besides Düsseldorf to have three chambers specialising in patent cases.
Munich is not the only regional court to see a rise in lawsuits relating to technical property rights. Frankfurt – which is usually recognised more for media law disputes than for patent cases – saw 32 new lawsuits last year.
This is around 23% more than in the previous year.
The numbers put Frankfurt on a par with Hamburg, which was previously the fourth most popular German patent court. While 47 new lawsuits were filed in Hamburg in 2019, the number fell by almost 32% to 32 in 2020.
In terms of settled cases, however, Hamburg is still ahead of Frankfurt. At a request from JUVE Patent, Hamburg Regional Court put the number at around 30. Frankfurt ruled in five patent cases, with a further 16 cases settled on other grounds.
At Hamburg Regional Court, the 27th Civil Chamber is responsible for patent disputes. Patent litigators praise presiding judge Stephanie Zöllner as “very fact-oriented and well prepared”. They emphasise the “fast scheduling, excellent preparation” and the “careful examination even of the suspension issue.” Hamburg is especially popular among patent owners for preliminary injunctions.
But another court in the north, Braunschweig Regional Court, recorded a significant increase in patent proceedings in 2020. In fact, the court saw more than double the number of newly-filed patent-related suits from six in the previous year to 14 in 2020.
Patent infringement cases are attractive for German courts, especially the extensive SEP suits such as that between Nokia and Daimler. Equally appealing are pharmaceutical cases over blockbuster drugs and medical technology, such as the recent dispute between Edwards Lifesciences and Meril over heart valve technology.
The high sums at stake in these disputes also means a windfall for the courts. This, in turn, pleases the federal state governments, with court coffers benefitting from the surplus.
When it is a question of keeping the courts attractive, as was recently the case in Munich, federal state governments are happy to spend money on new jobs – or even additional chambers.
The automatic injunction is the trump card making all German courts attractive for many patent owners. This always follows in German patent cases if the court finds patent infringement. According to patent judges, the recently-adopted reform of the Patent Act will not change this situation.
The reform enables courts to apply the principle of proportionality in cases where injunctive relief would represent a disproportionate hardship to an alleged infringer or third parties. It also makes provisions to substitute compensatory payments for injunctive relief, instead of courts automatically handing out injunctions.
But patent judges believe the change will have little impact on the current legal situation. In talks with JUVE Patent, judges say the automatic injunction will continue to be the hard rule in German patent cases.
New regulations on the automatic injunction will apply when the law comes into force, probably this summer. There is no transitional provision. The initial effects of the reform will therefore be evident in the 2021 case numbers. Patent experts in other European countries hope that it will weaken German courts as the go-to patent location, in favour of their own national courts.
Read about the case numbers of the patent courts in France, Italy, the Netherlands and the UK, in the second half of JUVE Patent’s extensive research on Europe’s patent court case numbers.
Researched for the first time by JUVE Patent, the article provides extensive insight into the patent litigation activity and number of patent cases at some of Europe’s major patent courts.