SEP cases left up in the air as Meier-Beck changes role

Meier-Beck is one of Germany’s most renowned patent judges and head of the 10th Civil Senate at the Federal Court of Justice, which has been responsible for patent cases. The patent senate has also up until now heard SEP suits, which frequently feature antitrust issues. Meier-Beck will relinquish his position as presiding judge of the patent senate in mid September to preside over the new 13th Civil Senate, but it is not yet clear which of the two senates – patent or antitrust – are to hear SEP cases in future.

So far antitrust cases have been heard by a temporary senate. This was composed on a case-by-case basis and was headed by court president Bettina Limperg. In addition, it consisted of three patent senate judges and five judges from other senates.

Peter Meier-Beck ©Jürgen Markus

The 13th Senate will be responsible for lawsuits related to energy law and public procurement, as well as also being responsible for appeals under the law on deprivation of liberty. Antitrust cases will continue to be heard by a parallel senate with the same bench concentrating solely on competition cases.

Deputy to presiding judge Meier-Beck will be Wolfgang Kirchhoff. The remaining full members are Birgit Linder, Ulrike Picker and Jan Tolkmitt. To a lesser degree, the Federal Court judges Ute Hohoff, Heinrich Schoppmeyer, Klaus Bacher and Patricia Rombach will all participate in the new senate.

The appointment of Rombach is interesting because she was only recently appointed to the Federal Court of Justice. She worked for a considerable part of her career at the patent chambers at Mannheim Regional Court, which is one of the most prominent patent courts in Germany, indeed Europe. She then became presiding judge of the Mannheim court’s 7th Civil Chamber, where she most recently headed the antitrust chamber.

Responsibility for FRAND cases

So far, the Federal Court of Justice has only announced that the new antitrust senate will continue to be primarily responsible for appeals against Higher Regional Court decisions in competition proceedings, such as fine disputes. This makes it unclear whether the antitrust or patent senate will in future deal with claims arising from standard essential patents. Up to now, the senates have coordinated this without any clear jurisdiction.

In 2009, for example, the old antitrust senate issued the so-called Orangebook ruling, which later led to the CJEU’s new guideline for antitrust-law-compliant conduct in actions for injunctive relief over SEPs. The CJEU issued these guidelines in its famous Huawei vs ZTE ruling in summer 2015.

A matter of interpretation

Meier-Beck is considered to be the mastermind behind the Orangebook ruling. In patent circles, the Rhineland native is said to be itching for a chance to interpret the CJEU judgment four years after it was issued. Patent experts in Europe are also eager for this, because the German courts have not been able to agree on a uniform case law.

Bettina Limperg ©BGH

As a result, German courts are not currently seen as attractive for major SEP suits. One patent lawyer called the situation an “impasse”.

So far only two SEP cases have ended up at the Federal Court of Justice in Karlsruhe: the Sisvel vs Haier case and the dispute between Unwired Planet and Huawei. Both are currently under consideration at the patent senate. There are rumours that the court will hear one of the cases this year and finally announce its interpretation of the CJEU decision in early 2020.

However, whether Meier-Beck will take the cases with him to the new antitrust senate is unclear. If they remain at the patent senate, then Meier-Beck will not get the chance to comment on the interpretation. He is due to retire in autumn 2021 at the latest. The question then will be who is to succeed him as presiding judge of the new antitrust senate.

Unanswered questions

There was already speculation at the beginning of the year that the establishment of a new senate was imminent. This became more concrete in the spring. Right from the start Meier-Beck was considered a shoo-in as presiding judge, partly because he already belonged to the temporary antitrust senate and partly because there is increasing overlap between patent law and antitrust law in SEP lawsuits.

In patent law circles there is talk that Klaus Bacher, Meier-Beck’s current deputy, will take over the helm at the patent senate. However, the Federal Court of Justice stated there has not yet been a decision here.

Bacher is expected to continue to manage the senate for the time being. Most observers doubt whether this will change German case law substantially in patent matters, since the senate boasts in addition several long-standing patent judges with a stellar reputation in the market, including Hermann Deichfuß and Klaus Grabinski. Otherwise the bench remains unchanged apart from the new addition of Rombach.

The patent senate is not only the highest German instance for infringement cases; it also hears appeals against revocation judgments from the German Federal Patent Court. This means cases heard separately in the German bifurcation system all go through the patent senate on appeal.