Germany: Court Proceedings In The Coronavirus Pandemic - A First, Small Field Report

In the past months, the coronavirus has had a firm grip on public life. In the meantime, this grip seems to have loosened somewhat and something like normality has returned to the courts. What does this "new normality" look like? A field report.

If you are one of those for whom "corona crisis" (or Chancellor Merkel's famous catch-phrase "opening discussion orgies"?) is a hot contender for 2020's least popular new phrase, rest assured: you will not be bothered with the question of whether lawyers should be considered as systemically relevant. Rather, we want to give you a small and highly subjective impression of how courts are trying to deal with the current situation. Our report is limited to disputes in the field of intellectual property law - the field we are predominantly active on; however, the experience in other areas of civil law is likely to be quite similar.

Following the Robert Koch Institute's upgrade of its risk assessment for Germany from "moderate" to "high" in mid-March, most IP litigation was temporarily shut down. Even in (typically rather urgent) preliminary injunction proceedings, oral hearings were postponed ex officio for several months. After all, one presiding judge commented, the case was not a matter of "life and death". But even here, we could observe that what some call "corona jumble" does not stop at the gates of the courts: while in Cologne, for example, postponing hearings ex officio was the order of the day, at the same time, only 40 km away in Düsseldorf, the motto was more or less "business as usual".

Meanwhile, a "new normality" has taken place, but it looks highly confusing. This becomes visible in quite banal things such as plexiglass partitions in the courtrooms or admission controls. In Stuttgart, for example, the judges are separated from the other parties involved in the litigation via plexiglass, whereas in Düsseldorf the plexiglass separates the judges from each other. Regarding admission controls, the spectrum ranges from simply being waved through to detailed inquiries carried out by armed security forces about one's own state of health or one's contact with people afflicted with the coronavirus during the last two weeks. Yet, one thing is true across the board: inside the courtroom the parties and their representatives are on their own when it comes to protection against infection. Plexiglass or at least seating at a minimum distance remain dead loss. Yet, we have also experienced very caring advice from judges to let them know whether we had any health concerns about court hearings in May.

As in many other areas, also in the courts the Covid-19 pandemic is giving digitization a powerful boost. A very welcome (and quite surprising to be honest) openness on the part of the courts to conduct oral hearings via videoconference is in fact widespread. This deserves applause and will hopefully last beyond the pandemic - not only because it saves travel time. Negotiations by videoconference allow the parties to expand the group of people (e.g. employees from patent departments) to participate in the hearing, which may have been kept small in the past for cost reasons. The guidelines recently published by the Patent Senate of the Federal Supreme Court on negotiations by videoconference and the assessment of the Senate Chairman communicated in a webinar give reason to hope that, based on the consistently positive experience, such negotiations by videoconference will continue to be offered after the pandemic. Here, too, the dictum applies: "Never let a good crisis go to waste! "