Declaratory Judgments in Germany; More on Hot-Tubbing in the U.K.

1.  Tobias Wuttke recently published a post on the EPLaw Patent Blog, and Heike Alps a post on the Kluwer Patent Blog, discussing a March 20, 2014 Decision of the Oberlandesgericht Düsseldorf (Case No. I-2 W 8/14) (available here).  The decision discusses the circumstances under which a person may bring an action for a declaratory judgment of noninfringement under German law.  By way of introduction, I briefly discuss the German law of declaratory judgments of noninfringement at p.281 of my book (citations omitted):

German law . . . does not necessarily require the potential declaratory judgment plaintiff to notify the patentee in advance, though it does require the plaintiff to demonstrate some sort of concrete interest (Feststellungsinteresse), such as a warning letter from the patentee. Actions for declaratory judgments nevertheless are rare in Germany, amounting (according to one estimate) to less than 1 percent of all patent litigation. Moreover, if the patentee thereafter commences an infringement proceeding, the declaratory judgment action normally will be dismissed.

The March 20, 2014 Decision involved a case in which the owner of a European Patent filed a claim for infringement of the Turkish portion of the patent in Turkey.  The plaintiff in that case had neither commenced nor explicitly threatened an action in Germany.  In response to a letter from the infringement defendant, the patent owner had merely stated that at that point in time (July 26, 2012) it could see no basis for opining about a possible future action or for investing time and money in retaining a German attorney to examine and evaluate an abstract question of infringement (Decision para. 1(b)).  Although an implicit or tacit allegation of infringement can suffice--and the two posts explain in detail the conditions the court believes would and would not be sufficient to establish an implicit allegation enabling the potential defendant to assert a claim for a declaratory judgment--the facts here weren't adequate to make out such an allegation on the part of the patent owner.

2.  I've previously mentioned the "hot tubbing" procedure that courts in the U.K. and Australia sometimes use for the presentation of expert testimony on damages or other issues (see here and here).  Two more articles on the subject that have come to my attention are Michael Dempsey, Two timing, Solicitors Journal, Feb. 28, 2011, and Edward Powell, In the hot seat, Solicitors Journal, Feb. 28, 2012.  According to Dempsey, "[i]f you want to see [hot tubbing] in practice the place to be is the Technology and Construction Court (CC) where a recently revised guide embraced hot tubbing."  Here is a link to the current (April 30, 2014) Guide, which at p.54 (section 13.8.2) states 

there are a number of possible ways of presenting evidence including . . . [f]or the experts for all parties to be called to give concurrent evidence, colloquially referred to as “hot-tubbing”. When this method is adopted there is generally a need for experts to be cross-examined on general matters and key issues before they are invited to give evidence concurrently on particular issues. Procedures vary but, for instance, a party may ask its expert to explain his or her view on an issue, then ask the other party’s expert for his or her view on that issue and then return to that party’s expert for a comment on that view. Alternatively, or in addition, questions may be asked by the judge or the experts themselves may each ask the other questions. The process is often most useful where there are a large number of items to be dealt with and the procedure allows the court to have the evidence on each item dealt with on the same occasion rather than having the evidence divided with the inability to have each expert’s views expressed clearly. Frequently, it allows the extent of agreement and reason for disagreement to be seen more clearly. The giving of concurrent evidence may be consented to by the parties and the judge will consider whether, in the absence of consent, any modification is required to the procedure for giving concurrent evidence set out in the CPR (at PD35, paragraph 11).