This is a quick but important follow up to my two previous posts on the CIPLITEC conference on Germany's recently-enacted patent "reform" bill:
The final part of the conference provided definitive clarity. First, Presiding Judge Dr. Matthias Zigann of the 7th Civil Chamber of the Munich I Regional Court said that it's his task to apply the law as it is, and it's clear that this year's amendment to the German Patent Act is designed to ensure continuity. In other words (my words), there's nothing disruptive or revolutionary there.
During his closing remark, Munich-based law professor Ansgar Ohly shared the latest information he had just received from a co-worker. At a Shanghai conference, Presiding Judge Klaus Bacher of the 10th Civil Senate of the Federal Court of Justice--the highest-ranking German patent judge--reported said that the 2021 patent bill is merely "a clarification and consolidation of the case law" (i.e., Heat Exchanger).
Let that sink in. It's game over for all those who thought infringers could avoid patent injunctions in Germany. There's not going to be any change on the bottom line. What the judiciary is concerned about is the potential for delay of some proceedings, and I'm not even worried about that: the courts will figure out shortcuts.
Germany's chief patent judge has spoken, as have several other important judges these days (Judge Fabian Hoffmann of the 10th Civil Senate of the Federal Court of Justice, Presiding Judge Andreas Voss ("Voß" in German) of the 6th Civil Senate of the Karlsruhe Higher Regional Court, and Presiding Judge Dr. Matthias Zigann of the 7th Civil Chamber of the Munich I Regional Court and soon--most likely--of the 6th Civil Senate of the Munich Higher Regional Court).
This is a hard reality check for the patent "reform" movement. On June 11, lobby group ip2innovate celebrated the German Federal Parliament's adoption of the "reform" bill with a press release that was as triumphant as it was detached from reality (or maybe we should just call it "spin"). Nvidia's Ludwig von Reiche said that "German patent law has finally arrived in the 21st century" and that "a change in the law is now being implemented that for the first time takes into account the complexity of modern products in the digital age." I'm not at all blaming Mr. von Reiche for trying to give the new statute a certain interpretation. But his interpretation doesn't matter. Nor does mine. What matters is what the judges say. And that just happens to be consistent with what I've been saying for a long time.
Share with other professionals via LinkedIn:
