The most stupid piece of patent legislation I've ever seen--apart from bills that never got enacted--is PatMoG2, last year's German patent "reform." Most of it entered into force in mid-August 2021, and 8 1/2 months later there still hasn't been a single case in which the "proportionality" language inserted into § 139 made a difference. What those advocating for stronger defendants' rights pursued as their #2 priority was a plan to mitigate the effects of bifurcation (invaliditation proceedings typically taking much longer than infringement cases). In that regard, too, the only clever and honest way to deal with it would have been for those "reform" advocates to tell politicians--politely, but clearly--"thanks, but no thanks." Instead, they contented themselves with crap, hoping that it would enable them to falsely claim victory without changing a thing in practice.
It was a win-win-win situation in the sense that patent holders preserved the status quo, "reform" advocates had something to show (though anybody who knows how patent litigation in Germany works wouldn't expect different outcomes), and politicians could make it look like they had solved a problem.
Short of abolishing bifurcation (as Judge Pichlmaier suggested in his comments to Juve Patent), the only thing that would have helped net licensees is a lower hurdle for getting cases--or the enforcement of injunctions--stayed. Oddly, a lower standard for staying the enforcement of injunctions during an appeal was even proposed as a solution by certain lobbyists representing key net licensors. But the misguided and incompetent "reform" camp didn't take the deal, and got nothing useful in the end.
All they achieved was that the German legislature inserted language into § 83 PatG (Patentgesetz = [German] Patent Act) that calls on the Bundespatentgericht (Federal Patent Court) to hand down its preliminary opinions on nullity complaints within six months of service of a given commplaint on the patent holder. That new § 83 PatG entered into force only today as a grace period was needed so the Federal Patent Court could adjust. Today is a Sunday (plus, a national holiday (Labor Day)), but if you are patent holder and a nullity complaint is served on you anytime now, then the six-month target applies.
Yes, it's merely a target, not a rule. You can't get an infringement case stayed only because the Federal Patent Court takes longer. And six months is typically quick enough for main proceedings, but doesn't solve any problem in fast-track preliminary-injunction proceedings.
If a patent is less than nine months old, it can still be challenged before the patent office (usually the European Patent Office). In that case, one cannot file a nullity suit yet. It is an oversight--due to incompetence by too many of the people involved--that the "reform" bill doesn't address this problem. The Federal Ministry of Justice realized this when it was too late, so the measure got enacted anyway, but there is a plan to publish a "bugfix" at some point.
Even in those cases in which the six-month target applies, what good it will do? I'm very, very skeptical.
I actually have a lot of sympathy for the judges over at the Federal Patent Court. Those "reform" advocates complained about how long it takes until those nullity complaints get adjudicated, but that's because of the court's caseload. Granted, the Federal Patent Court could decide more cases if it reduced the number of judges on a nullity panel from 5 to 3 and/or didn't require every single judge to write an opinion for internal purposes only the per curiam gets published in the end). But that's not the judges' fault either.
Defendants to infringement lawsuits must present their nullity action at the time of responding to the infringement complaint (in order for the infringement court to consider it). From service of the nullity complaint, patent holders have two months to respond in defense of their patents. That period was often extended, sometimes up to five months, and now the Federal Patent Court is going to be extremely reluctant to grant extensions. That will also apply to the reply briefs that nullity plaintiffs submit.
The Federal Patent Court will, therefore, have a pretty developed record in front of it early on. But will it then actually render preliminary opinions that are going to help the infringement courts as they have to decide on whether to stay a case pending a parallel nullity action?
Even the six-month target isn't legally binding, but time is at least measurable. What simply cannot be measured is the quality of what the Federal Patent Court will deliver at that early stage.
That court won't all of a sudden have far more judges. It can't do magic just because of that new § 83 PatG setting an insanely ambitious target. With the old timeline, about half of all cases never reached the point at which the judges even had to seriously assess the merits: disputes often got settled before. Now the court has to form an opinion--albeit only a preliminary one--on virtually 100% of all cases, and on a very short timeline.
The predictable net effect is that the Federal Patent Court's preliminary opinions will simply be less helpful than in the past (where they came down at a much later stage). There is no hard and fast requirement that those preliminary opinions must actually indicate in which party's favor the court is inclined to rule. In fact, the very § 83 PatG merely says that the court shall inform the parties at the earliest stage possible of "aspects that will foreseeably be particularly relevant to the decision or serve to focus the oral hearing on the outcome-determinative questions." In other words, those preliminary opinions don't have to be opinions. Acctually, they aren't even called preliminary opinions in German: the more literal translation of "Hinweis" is closer to "notice."
All that the Federal Patent Court has to do in order to reach the (non-binding) six-month target is to lay out the agenda. It doesn't have to decide on claim construction at that stage, nor does it have to express an opinion as to whether the challenged patent was anticipated by a given prior art reference or doesn't involve an inventive step over a combination of prior art references. The court can just identify what questions are in dispute between the parties. That's it.
Those advocating "reform" wanted fast food, and fast food--not gourmet food--they shall get.
Is that going to assist the infringement courts (which are in a position to identify the bones of contention by themselves)?
Is that going to result in more stays of infringement proceedings?
Are the judges of the Federal Patent Court going to be forever grateful to the automotive industry and Big Tech for having called into question their efficiency and for having lobbied for something that just puts unreasonable pressure on them?
No, no, and no.
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