5.6.9 Oral hearing
The rule is to hold only one oral hearing toward the end of the process. The regional court typically has one hearing day per week (e.g., Friday for the VII Civil Panel of the Mannheim court), for which more than one case is scheduled. Depending on the complexity of the matter, the court reserves one or several hours for the hearing. Occasionally, hearings in complex cases go on for eight hours or more. There are no time limits for the pleadings of the parties, and the parties do not need to turn in pleading notes ahead of the hearing.
The hearings need to be public (cf. Section 169(1) of the Courts Constitution Act) unless the public is excluded, for example, to protect trade secret information that might be discussed during the hearing. Excluding the public requires a nonpublic hearing on the ground for exclusion and can only last for as long as necessary (cf. Section 174(1) of the Courts Constitution Act). Because the public must be given the chance to attend a hearing, the name of the parties, the time of the hearing and the case number need to be put on a panel in front of the courtroom.155 Furthermore, the public must have access to the court building and the courtroom.156 However, the docket is not public. Thus, it is generally not possible to ascertain whether a certain case is pending by looking into the docket or calling the court’s registry. As a matter of course, the parties do not need to keep the case confidential.
The hearing must always take place physically at the court room, so this is the relevant location for ensuring that the hearing is open to the general public. However, the court can, under Section 128a Code of Civil Procedure, also permit the parties and lawyers to stay at another location and broadcast the hearing in real time to that location. This formed the basis for the frequently used video hearings that were welcomed during the COVID-19 pandemic. Additionally, witnesses and experts may be permitted to stay in another location and be connected through video for their examination.
All patent infringement matters are heard by a bench of three judges (Section 75 of the Courts Constitution Act). While it is generally possible to delegate a civil action to one member of the bench, that possibility is basically never used in patent infringement matters. One of the three judges on the bench (but typically not the presiding judge) acts as a reporting member. This reporting member prepares a detailed analysis of the case and makes a preliminary opinion as a basis for the deliberation of the three judges taking place, as a matter of practice, on the day before the hearing. The reporting judge and the presiding judge are expected to know the files at a great level of detail, while the third judge receives most of the information from the deliberation and the hearing (but does have the same vote regarding the decision). In most cases, the presiding judge speaks for the bench in the hearing, but, selectively, the reporting judge or the third judge may also ask the parties questions during the hearing.
The hearing starts with the presiding judge calling the matter by naming the parties and the case number (Section 220(1)). Different from a trial-based system, there are no comprehensive minutes that would form part of the record. Rather, the presiding judge only records specific aspects of the hearing.157 At the outset of the hearing, the presiding judge records the attendance of the parties and their representatives as well as that of the bench. In some cases, the presiding judge also records the prayers for relief (requests) at the outset of the hearing, unless those requests were already recorded in an earlier hearing date, which is possible according to the practice of the Munich court and the Düsseldorf court. In most cases, however, the prayers for relief are only recorded toward the end of the oral hearing as certain aspects might change during the course of the hearing. The recording is either performed by a record clerk (cf. Section 159(1)) of the court registry or by the presiding judge using a recording device (the latter has become most common).
After recording attendance, the presiding judge first asks the parties if there is any possibility of settling the dispute (Section 278(2)). While, in most cases, those discussions will be cut short by the parties, the parties can point out certain considerations that have so far guided them or that have turned out to be a problem in settling the case. Based on the court’s initial assessment of the merits of the case, the court could revisit the discussions later again. Thus, the bench is not just strictly observing the presentation of the matter, but it also has an active role in terms of encouraging and possibly facilitating settlement as well as engaging in a discussion of the key points of the dispute with the parties. The Code of Civil Procedure expressly provides that, to the extent required, the court is to discuss with the parties the key points of the dispute, both in terms of factual aspects of the matter and of its legal ramifications (Section 139(1)). In this regard, the court is also to ask questions and work toward ensuring that the parties’ contentions are complete with regard to all the relevant facts and evidence. The court must also ensure that the prayers for relief are correctly phrased. So, for example, if the court has concerns regarding the admissibility of the requests because they only repeat the claim language, the court would need to give a formal notice under Section 139(1) indicating that the language of the requests would need to be amended in order to be admissible.
To ensure the court has completely understood the parties’ submissions and has complied with its duties under Section 139(1), the presiding judge gives an introduction to the matter (Section 278(2)). This is, in most cases, a concise account of the bench’s understanding of the parties’ key points. While the court cannot form a conclusive opinion at this stage but must rather stay open, the presiding judge will typically also present the bench’s preliminary view on the merits in order to give the parties an adequate chance to address the court’s view. The preliminary opinion is based on the deliberation of the bench.
While it is not easy to “turn around” the bench, it does happen, particularly in complex cases, that the bench changes its mind. If new points that the counsel would want to discuss with the client before responding in the hearing are raised, it is also common for either side to ask for a break after the introduction. It is standing practice that the bench gives the word first to the party disadvantaged by the majority of the points in the introduction. As stated before, there is no time limit for oral pleadings, but the bench expects (and regularly states) that the points in its introduction be specifically addressed rather than repeating just the essence of the written briefs.
It can be important for the parties to have certain statements recorded. This is the case, for example, if a certain factual aspect pertaining to the accused device is described in more detail only during the hearing. Otherwise, it will be difficult to base a decision on remarks made during the oral hearing. The court must also record notices under Section 139 (cf. Section 139(4)) unless those have been given ahead of the hearing in writing.
At the end of the hearing, the presiding judge will typically record the requests and set a date for pronouncing the ruling on the case (Section 310(1)). This is typically about four to eight weeks after the hearing. The presiding judge then announces that the hearing is closed. This point of closing the hearing is the final point of the process. Any decision will procedurally refer back to that point. No later-filed facts or evidence can be considered for making the ruling (Section 296a). In rare cases, the court retires for further deliberation before closing the case and returns to pronounce a decision in the hearing. Such an ad hoc verdict is procedurally possible but practically very rare and, in those rare cases, is almost always against the plaintiff dismissing the action. It presents the court’s firm conviction that the case is without basis.
Nevertheless, post-hearing briefs are always a significant point. These are possible if new points have arisen in briefs of the opposing side or if notices from the court came to the party’s attention without sufficient time to allow them to be adequately addressed during the court hearing (Sections 283 and 139(5)). It cannot be generally said at what point prior to the oral hearing such new points will be considered too late for adequate comment in the hearing. Sometimes, lawyers refer to a one-week term, but this is not conclusive in this regard. A new factual point can be raised two weeks before the hearing and yet justify a leave for the opposing party to file a post-hearing brief, provided that the given points are sufficiently complex. If it is the plaintiff that files new points shortly before the hearing, the courts have a tendency to push back the hearing date so that the defendant can adequately respond before the hearing, enabling sufficient preparation of the matter ahead of the hearing.
A post-hearing brief is also possible if new points were only raised during the hearing. The problem with post-hearing briefs is that new facts can be introduced into the proceedings that, by the time of the decision, were not necessarily discussed in the proceedings, as the proceedings formally closed with the end of the oral hearing. Thus, if a new point relevant to the decision-making is raised in a post-hearing brief, the court might need to reopen proceedings (Section 156(1)), which means that another hearing date is required unless the parties agree to a decision in written proceedings according to Section 128(2). This can, of course, significantly delay the proceedings.
However, it is rather difficult to reject new facts or evidence as late-filed. Even though the Code of Civil Procedure provides for this in Section 296, under the case law of the Federal Constitutional Court, there is a requirement to show an actual delay of the action if the late-filed contention is admitted into the proceedings.158 This means showing that the action would be delayed compared to a scenario in which the file was made on time (relative delay).159 Even if a contention is contested, it might not delay the case because any order for evidence would have only been made following the (“final”) hearing anyway. Only if the hearing date could have already been used for disposing of an evidentiary point triggered by the late filing would a preclusion be realistically possible.
The parties can file post-hearing briefs even in the absence of an express leave to that extent. As the hearing is closed, new facts in post-hearing briefs cannot be considered for the decision (Section 296a). However, the court is under the duty to read all post-hearing briefs to determine whether any further submissions in those briefs would warrant reopening the matter under Section 156. Such a reopening is within the court’s discretion; it must balance the further delay against points of judicial economy.