Yesterday I reported on the first panel of the CIPLITEC online conference on German patent reform, where it became very clear once again that injunctions will remain the customary patent remedy as I had been predicting all along. The conference is continuing today, and what just happened this morning was nothing short of astounding.
In a virtual panel discussion, Judge Fabian Hoffmann of the patent-specialized 10th Civil Senate of the Bundesgerichtshof (Federal Court of Justice) replied to certain infringer-friendly positions taken by others on the question of how punitive the compensation owed by an infringer to a patentee should be in cases in which an injunction is denied or, far more likely, tailored by means of a use-up or workaround period. Here are the most amazing parts of what he said:
Judge Hoffmann acknowledged that "patent law may indeed do more harm than good."
He said he could see why some would like to see "more competition."
He even went as far as to say thathe was "politically with [those who voice such demands]."
Having said that, he explained--and I concur with him--that this year's German patent reform bill is not designed to bring about fundamental change.
Judge Hoffmann not only followed but even contributed to the legislative process, such as by participating in a parliamentary hearing (my report on that one did not mention him as I focused on other aspects than the ones he addressed). He recalled today that on the one hand there are academics and lawyers who claim that most companies would rather see a "more balanced" and "more moderate" patent enforcement regime, but at the said hearing--which I had accurately described as a total victory for reform opponents due to a miserable failure by pro.reform forces--there was a widespread consensus in favor of strong patent enforcement.
The result is that the legislative intent is clear: there was no political will to depart from German patent enforcement tradition. And that's the law that he as a judge has to apply faithfully (I'm paraphrasing him here, but not straying far from what he actually conveyed).
I've previously criticized the absolutely pathetic lobbying and campaigning effort on the part of pro-reform forces like German automotive industry association VDA, the misguided ip2innovate lobbying group, and Apple. It was a mix of amateurs, (in a very few cases) saboteurs, and people who meant well but could not get their companies or their (idiotic) industry associations to make the right decisions. They also had a budget that was not even 5% of what would have been needed to bring about serious change. You won't be surprised that Judge Hoffmann obviously wouldn't make statements like that. But what he said nevertheless validates my scathing remarks on that pro-reform lobbying effort. Judge Hoffmann told the audience that if they wanted to fundamentally rethink patent law, which may indeed be warranted even in his opinion, they need "a second reform" and will have to do what it takes to get a different outcome.
This is a lot of food for thought for some people, and I'd like to leave it at that for the time being. I'm going to continue to make the very same distinction as Judge Hoffmann made today: there's the question of what innovation policy is desirable, and there's the question of what the law--in its current form--says. There's the world in which some would like to live, and the world in which we actually live. The German patent enforcement system is going to be the same except that time and money will be wasted on proportionality arguments (mostly by defendants). There's room for lots of academic discussion, and parts of the CIPLITEC conference--with the greatest respect--were more about the trees than the forest. But patentees will still get the same leverage from bringing infringement cases in Germany as before. In fact, compared to where statutory and case law stood when the reform process began, patentees even have a lot more leverage now.
Share with other professionals via LinkedIn:
