“Munich should be the go-to location for patent disputes” – an interview with Andrea Schmidt

For ten years, the so-called Munich Procedure has featured in patent disputes at the Munich Regional Court. Now it's time to take stock. Researchers at the Max Planck Institute have evaluated the procedure, with the Munich court calling on the legal profession to make suggestions for improvements. JUVE Patent spoke to Andrea Schmidt, president of Munich Regional Court, about the survey findings and the future of Munich as a patent location.

22 October 2020 by Konstanze Richter

Andrea Schmidt Andrea Schmidt became president of the Regional Court Munich in September 2018. Prior to this, Schmidt worked as a prosecutor and judge. ©Kubinska & Hofmann - Munich

Today, Dietmar Harhoff, survey lead at the Max Planck Institute, and Andrea Schmidt, president of the court, presented the results of the evaluation. In an interview with JUVE Patent, Andrea Schmidt spoke about the steps the Munich court is taking to attract more patent cases and create a specialist environment for IP litigation.

JUVE Patent: What are the main findings of the evaluation of the Munich procedure for patent disputes?
Andrea Schmidt: All in all, the Munich procedure is seen very positively. Around 80% of those surveyed – mostly patent attorneys, and lawyers from law firms and companies – see the Munich procedure as a locational advantage. They particularly praise the technical expertise of the patent judges and the short duration of proceedings.

The strict deadlines set out by the procedure ideally lead to a first-instance ruling after 12 months. In contrast to other courts, Munich has a detailed first hearing, where the court discusses critical issues with the parties. The parties then have until the second hearing to make further written statements.

Andrea Schmidt

Andrea Schmidt ©Kubinska & Hofmann – Munich

How do you respond to criticisms raised in the evaluation, especially regarding the high judicial workload?
A central concern of those surveyed is that the judges in the two patent chambers do not have enough time to thoroughly deal with the proceedings. With the new chamber for copyright, we have taken the first steps towards relieving the burden on patent judges. Since 1 October 2020, the newly-established 42nd civil chamber is handling disputes relating to copyright, design and community design law.

“A new copyright chamber allows the patent chamber to concentrate on its proceedings”

Through this, we want to strengthen Munich as a location for copyright. But mostly it will allow the patent and antitrust chambers to concentrate on proceedings in their specific fields of law in the future.

There are also calls for more continuity in staff planning and for the strengthening of the second instance court.
We have long aimed to ensure that, where possible, the judges’ expertise remains in the chambers. I am in close contact with the vice president of the Higher Regional Court, Ursula Schmid-Stein, who is also responsible for staffing matters. In the past, we have been successful with recruiting and keeping specialised judges in the area of IP law to ensure continuity and we will keep a close eye on this in the future.

Why did the number of new patent suits filed at Munich Regional Court increase in 2019, compared to other first instance courts in Germany?
The Munich Procedure contributes to this. Above all, the early first hearing date has proven successful in SEP suits. There is also a high level of confidence in the judges’ technical expertise, demonstrated by important and complex SEP patent disputes.

“An early hearing date has been successful for SEP suits”

For example, Apple against Qualcomm or the anti-anti-suit injunction in the dispute between Continental and Nokia. These cases attract international attention and strengthen confidence in Munich as a court location. Good judgments can only be written by those who are well-positioned, with the appropriate knowledge.

Why is Munich Regional Court trying to position itself specifically as a location for patent disputes?
Munich is a central location for patent law with important institutions such as the European Patent Office, the German Patent and Trademark Office and the Federal Patent Court. It’s only natural that we want to play in the top league as a court location. As an innovative business location, Bavaria needs a strong patent court. We also can’t deny the consequences of the ‘choice of court’ principle (fliegender Gerichtsstand).

In addition – and we have this in common with other important patent locations such as Düsseldorf and Mannheim – we want to strengthen Germany as a location for patent disputes. This is particularly important in view of Brexit and its consequences.

Our antitrust chamber already maintains close contact with its counterparts in Düsseldorf and Mannheim, which handle many actions for damages. We now want to establish such cooperation in the patent chambers, where a particularly large number of SEP suits and FRAND issues are heard.

What do you think about the criticism that Munich Regional Court might become too plaintiff-friendly?
I have great confidence in our patent judges. An action only has a chance if it is well-founded. It is in our own interest to examine actions thoroughly and make a fair judgment.

During the coronavirus crisis, the court used a new video conferencing system in patent disputes. Do you plan to retain this for future hearings?
So far, we have had a very positive experience. All Regional Court judges received extensive technical training beforehand. Patent attorneys and litigators are particularly open to technical innovations – after all, it’s what their profession is all about. The patent chambers were the first to start oral hearings by video after the outbreak of the pandemic. I see video conferencing as a complement to the work of the court, but I cannot imagine proceedings purely by video in the future. The oral hearing is the core of a civil case.

Mediation is also an important part of the Munich procedure. What has been your experience with mediation in patent disputes?
The so-called ‘Güterichterverfahren’, whereby judges are obliged to work towards an amicable settlement of the dispute, has a long tradition at Munich Regional Court – especially in IP. The court specialises in judges who have done such training and are experienced in patent law.

“We’ve seen positive developments in mediation for IP”

I consider the overall development of mediation in IP to be positive. No separate statistics or precise figures are available for patent disputes, but it’s clear that more and more proceedings are ending amicably through mediation.

We have organised our last press day on this subject to further draw the public’s attention to this service of the Munich I District Court. Mediation is also possible with us in English. We have already had mediation in patent law proceedings in many different areas.

The interview with Andrea Schmidt was conducted by Konstanze Richter