1 April 2020
Although the courts in Germany formally continue to work, the Corona pandemic has also led to considerable cuts in this area. Oral hearings which are not “necessary” have been cancelled or postponed in order to avoid social contacts and to comply with the 1.5-2m distance rules. Civil law disputes which are not required for the protection of life and limb (e.g. family matters) or existential purposes are usually not considered as necessary in such sense. Thus, most patent and IP disputes are currently considered "not necessary".
However, even a pandemic must not lead to a permanent breakdown of the jurisprudence in a functioning democracy. Since it is currently not foreseeable how long the restrictions on public and social life and the associated travel restrictions will have to be maintained, the courts - and also the parties - are called to consider alternative solutions to holding an oral hearing.
In Section 128a, the German Code of Civil Procedure (ZPO) has in fact already provided since 2013 that oral hearings in civil law disputes may also be held without physical presence, i.e. by means of video and audio transmission. Section 128a ZPO reads as follows:
Section 128a Hearing for oral argument using image and sound transmission
(1) The court may permit the parties, their attorneys-in-fact, and advisers, upon their filing a corresponding application or ex officio, to stay at another location in the course of a hearing for oral argument, and to take actions in the proceedings from there. In this event, the images and sound of the hearing shall be broadcast in real time to this location and to the courtroom.
(2) The court may permit a witness, an expert, or a party to the dispute, upon a corresponding application having been filed, to stay at another location in the course of an examination. The images and sound of the examination shall be broadcast in real time to this location and to the courtroom. Should permission have been granted, pursuant to subsection (1), first sentence, for parties, attorneys-in-fact and advisers to stay at a different location, the images and sound of the examination shall be broadcast also to that location.
(3) The broadcast images and sound will not be recorded. Decisions given pursuant to subsection (1), first sentence, and subsection (2), first sentence, are incontestable.
In practice, this provision has so far hardly ever been applied - and if it has, then primarily for the purpose of questioning witnesses being abroad or witnesses who are unable to travel. In fact, for practical reasons a considerable part of civil proceedings will not be able to make use of these possibilities, for example either because of lack of technical equipment (both at the courts and at the parties), or because the personnel capacities are not available.
In patent and IP disputes, on the other hand, both the party representatives and the parties themselves are usually very well equipped and trained in the use of video and audio conferences. The courts are also already upgrading their equipment. For example, in a press release dated 31 March 2020 (press release 8/2020), the Düsseldorf Regional Court stated that the technical capacities for oral hearings by video conference are already in place. The aim is to negotiate as usual but without meeting in person. Of course, the public would still have the possibility to follow such hearings from the courtroom - in compliance with all the currently necessary requirements.
It has to be expected that the introduction of such a "new" procedural method will take some time, but should be established quite quickly and then be copied by other courts. It can be assumed that the widespread use of video conferencing in civil proceedings will be realized in the near future and will give an additional boost to the German judiciary, which is already considered to be particularly efficient.
Patent and IP disputes in particular should be particularly well suited for videoconference negotiations, as the preceding written exchange of submissions is regularly already very comprehensive that "only" the essential technical and legal questions are discussed in the oral proceedings. The German civil proceedings are probably one of the most suitable for videoconference hearings worldwide, since - unlike in other jurisdictions - they do not provide for oral proceedings lasting for days, but for example in patent infringement proceedings they often do not last longer than 1-2 hours and even in invalidity proceedings rarely last more than one day. The judges are already fully informed about the state of discussion due to the extensive written exchange of information and can - whether by analog or digital means of oral proceedings - concentrate on the essential points which are still open.
Taylor Wessing is already well prepared for such proceedings due to its long and extensive experience in arbitration proceedings and its participation in opposition proceedings before the European Patent Office, where video conference negotiations are well established, as well as due to its international patent litigation experience, which often includes mock trials with participants from all over the world by video conference. Please contact us if you have any questions regarding the formal requirements, practical possibilities and specific procedures of oral hearings by video conference.
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by multiple authors