Courts in Karlsruhe

First off, a little bit of administrative stuff.  This is the last recap of my trip to Germany.

Fountain in front of old courtKarlsruhe is home to both the Federal Constitutional Court and the Federal Court of Justice.  We began our day at the former court, which is located near the Schloss Karlsruhe.  The town’s layout is interesting, by the way, because all the streets fan out from the central location, giving the city a half-circle shape.

Volker Pletternburg was our guide for the Constitutional Court.  He said the court has been located in Karlsruhe since 1951.  It had been moved from Leipzig following the division of Germany after the war.  The court was intentionally kept away from Bonn and Berlin to preserve judicial independence.

Pletternburg said that the court receives 6,000 petitions a year to hear cases.  The petitions come either from individuals who have constitutional complaints or from state governments whose laws may be violated by a federal law.

The court consists of 16 judges, who are divided into panels of eight people called senates.  The judges are elected by a committee in the Bundestag, which also sets the judges’ salaries.  Once judges have been put in a senate group, they stay with that group for the whole of their Constitutional Court career.

Originally, the first senate handled the citizens’ complaints and the second senate handled the states’ complaints, but Pletternburg said this has changed over the years.  All 16 justices meet at once only for administrative purposes or in the event that one senate’s decision from conflicts with one from the other senate.

The offices of the justices are in an adjacent building, with the so-called first senate on the first floor and the second senate on the second floor.  Each judge can have up to five staff members.  Their clerks must already be judges themselves, and many times are already well-known when they take the clerical position.  Serving as a clerk in the court is considered a career step.

Generally, hearings are not open to the public.  On rare occasions, both parties in a case may agree to hold their hearing in the public session room.  The public and the press are allowed to sit in, but no cameras are allowed.

Christine translating Colker PlettenbergPletternburg noted the eagle on the wall behind the judges’ seating area in the public session room.  “It looks kind of deranged,” he said.  It was modeled in such a way to show that the state does not have influence over the court’s decisions.  He mentioned that a well-known murder mystery novel in Germany features a scene where the eagle falls off the wall and kills a judge.

Anyway, for public hearings, the procedures are determined beforehand.  There is no time limit on speeches, and all of the judges can question lawyers on each side.  The seating is arranged by order of seniority.  There are chambers in the adjacent building for closed hearings.

After a decision is rendered, the justices decide on how the case law should be published.  The publishing staff of the court sends the decision to a publisher for the case reporter, but commercial publishers can also buy copies of decisions from the judges for their own use.  Also, judges may or may not allow the case to be published electronically, which can lead to some inconsistencies when trying to access decisions.

The main clientele for the library are the clerks of the justices, although some judges come by as well.  Clerks are taught how to use the library’s intranet page, which they usually access from their office.  The collection consists of public and constitutional law materials, as well as some non-legal literature dealing with government law and philosophy.  While the catalog is available electronically, they still have their card catalog as well.

The library has an annual budget of €500,000, and Pletternburg said that half of this goes to looseleaf filings.  In addition, each justice has their own office collection.  There is also a daily press review published by the library that covers news important to the court.

Periodicals on displayAfter lunch, we toured the Federal Court of Justice with Dietrich Pannier.  He said that here, unlike at the Constitutional Court, hearings are generally open to the public.  If both sides agree, cameras can be allowed into the court as well.  The court handles cases pertaining to civil and criminal law that have been appealed from lower courts.

Judges are selected to balance to court out geographically (in case there’s a lack of representation from, say, Hamburg) and to fill in topical areas that need coverage.  In a pinch, justices may be asked to switch expertise, going from civil law to commerical law.

The original courthouse was actually a manor built for a duke. It became a government building after WWI.  In 1950, it was turned into the courthouse. Pannier noted that the library used to be in the kitchen of the manor.  Since then, a number of new buildings have been built to modernize the court’s facilities.

In another difference from the Constitutional Court, the Court of Justice library is open to the public.  It consists of four floors, plus a basement for pre-WWII holdings.  After reunification, it was expected that the court was going to move to Leipzig.  The library modeled their cataloging system after the Leipzig courts’ system.  Surprisingly, said Pannier, the court stayed in Karlsruhe.

The main reference desk is not on the main floor, but on the first floor (in American terms, it’s not on the first floor, but on the second floor).  Pannier said that judges often make use of the reading room on the first floor, so it made sense to have the reference desk there as well.

Pannier said, “If I see five people here, I say, ‘Oh, it is crowded today.'”  He believes that internet usage has eaten into library usage, although he doesn’t see that is a big deal.  “Why should the judges come every day?” he asked, noting that they are already familiar with the print materials.  Moreover, the library’s website has a comprehensive collection of links to online German law materials.

The library budget has decreased €40,000 over the past couple of years, but Pannier indicated that he usually takes the initiative to streamline costs and the collection.  Regarding weeding, he said, “I will not ask anyone.  I will do it.”  He added, “I am paid well to decide for the library.  The judges are paid well to make judgments.”

With that visit, our trip to Germany came to an end.  As part of our agreement to participate, we had to submit a report on our experiences to to the Checkpoint Charlie Foundation, which provided funding for the tour.  You can read my report (with all its grammatical errors) on the Germany Study Tour website.


European Court of Human Rights

Les 7 pétrifiésOur final stop on our trip, from a pure “no longer hauling our luggage to the train station” perspective, was Karlsruhe. However, we took off for Strasbourg, France the morning after we checked into our hotel.

Strasbourg is home to the European Parliament, where I and my wife and a large number of her professional peers were once trapped on one of the most horrific tours any of us had ever been on. Our guide did not speak English as well as he thought he did, and also he fancied himself quite the expert on European affairs. So, after a brief walk around the building, he brought us to one of the parliament’s conference rooms to sit down, and then he proceeded to lecture us for about 45 minutes on such issues facing the E.U. as Turkey and the former Yugloslavia republics.

Finally, he opened it up for questions, and you could hear people groan when someone raised his hand. This person asked, “What about Russia?” Our guide thought for a moment, then responded, “Well, the problem with Russia is it’s sooooo beeeeeeeg.” The crowd burst into laughter, which forced our guide to laugh, mainly because I don’t think he understood what was so funny, but didn’t want to feel left out.

Afterwards, we all went out to eat and, more specifically, to drink, and I almost killed myself trying to match the Finns in our group drink to drink. Otherwise, I absolutely love visiting Strasbourg and was thrilled to have another chance.

We began our day trip by visiting the European Court of Human Rights, located near the European Parliament. Our guide was the court’s head librarian Nora Binder, assisted by the deputy librarian Genevieve Woods.

The front of the court

The court is a part of the Council of Europe, which was founded in 1949 to protect human rights in post-World War II Europe. The European Convention on Human Rights was ratified by 12 countries in 1950, and has been enforced since 1953.

The court was created in 1959 to hear cases involving torture and the inhumane treatment of prisoners. The most common complaint to the court is the denial of the right to a fair hearing. The vast number of cases brought to the court are brought by individuals, but not all applications to the court will be heard. Anyone living in a country that have ratified the convention can petition the court. An application must be submitted within six months of the final hearing on one’s case in one’s home country, and all other legal options must be exhausted first. Events that occurred before a particular country ratified the convention are not covered.

Judgments are binding for any country that has ratified the convention, and these countries sometimes need to pass new legislation to prevent future offenses. A committee of ministers from the Council of Europe enforces judgments, and expulsion from the council is the ultimate punishment for violations.

HUDOC is the council’s database of judgments. The court defines the keywords utilized in the cases, while a committee of attorneys determine the importance of each case. A case can be rated from one to three, with one being a key, precedent setting case. The importance rating does not change.

Using the database can be a bit tricky because of how cases are translated. Cases are available in both French and English and even something as simple as a person’s name can require different spellings depending on the language.

Strasbourgh architectureHUDOC is updated daily, as soon after a judgment is rendered as possible. It has cases going back to the 1970s, but older cases are currently being retroactively added to the databases, with cases rated one being scanned in first. Earlier cases can be purchased through the court’s archive, who will scan in and email them to requesters. HUDOC documents are admissible in court.

The library is small, with not a lot of room for the expansion of the collection. In addition to space issues, budget constraints limit the access to more expensive databases. Half of the materials used at the court are borrowed through ILL, although the library itself does not send out materials through ILL. The materials in the in-house collection include human rights treatises and laws from 47 countries. There are presently two permanent librarians and four contractors.

The library is open to the public on an appointment basis. There is also a great deal of material available to the public on the library’s website. This includes a new acquisitions bulletin and scans of the covers of the latest periodicals. Manuals are also available, but for a fee. They also have full-text internal working papers on the convention, which is good for planning for trials by serving as a sort of legislative history.

After our tour, and lunch at the court’s cafeteria (where I totally got to speak in French, and didn’t even get accosted for doing so!), we took a boat tour of the city, then spent some time hanging out in the square around Cathédrale Notre-Dame-de-Strasbourg.


On our first full day in Munich, we visited both the German Patent and Trade Mark Office (Deutsches Patent- und Markenamt, or DPMA) and the Max Planck Institute for Intellectual Property, Competition and Tax Law (which I recapped in an earlier post). Munich is Germany’s capital of Intellectual Property, so it made sense to have an IP theme for the day.

At the DPMA, we met with Hubert Rothe, the head of the Information Services for the Public division. He provided us with an overview of Germany’s IP law and the function of the DPMA.

Before we get into the details of our visit, I am submitting this post to Rothe to review in order to confirm that what I’ve written is, you know, accurate. So expect it to be updated shortly.

Hubert RotheI’ve received Rothe’s update and have made the changes below.  They are underlined for dramatic effect.

The DPMA originally opened in Berlin in 1877. The old office in the Kreuzberg neighborhood now houses the Jewish Museum. In 1949, it was reopened in Munich. There are presently three DPMA offices. The Munich location has 2,259 staffers. The office in Berlin, which focuses on education resources for the public, has 105 employees, while the office in Jena has 235 staffers. The DPMA employs 700 patent examiners and 150 trademark examiners.

Rothe said that the mission of IP protection is the “promotion of economic development.” He explained that IP is divided into two broad categories, industrial property and copyright. We didn’t discuss copyright in any great deal, but Rothe did say that Germany does not have a copyright office “since the legislation in Germany and other European countries does not provide for a copyright registration. The creator owns the copyright without any formal steps.”

Industrial property is divided into four categories:

  • Technical intellectual property rights (divided into patents and utility models);
  • Marks (trade marks and service marks);
  • Designs;
  • Protection of plant varieties.

Patent law operates under a contract theory: an accepted application is a contract between the holder and the state that gives the former exclusive right of use for a maximum of twenty years. Unlike in the U.S., where the inventor holds a patent, European patents are mostly held by the company employing the inventor. Rothe wrote, “According to German law the inventor has to give notice to the employer about all inventions related to the job. The employer has to decide whether he will file a patent application or allow the employee to personally file the application. If the employer files the application the employee is entitled to an appropriate remuneration.”

The applicant must agree that the government can publish the specs of the invention to make them available to competitors and the general public. This information can be found in such publications as the patent documents (e.g. “patent specification” and the patent gazette, both published on the internet. This is in part how the law encourages invention in Germany. Only military-related trade secrets are not published, and even then, patent examiners decide in co-ordination with the Federal Ministry of Defense whether this exemption is granted. Rothe said the number of patents that aren’t published is relatively small.

The preconditions for IP protection are worldwide novelty, inventive activity (does the invention add something valuable to the state of the art), and commercial applicability. Discoveries, scientific theories, mathematical methods, plans, rules, and processes for theoretical activities are all not eligible for IP protection. Neither is software, per se. Rothe wrote, “The main claim of the patent application must include ‘technical means’ for solving the given problem in addition to the software.”

Applicants can choose to apply for protection in either Germany at the DPMA or at the European Patent Office, which opened in 1977 and also happens to be where we had lunch after our meeting. Rothe said that the advantage to applying for protection at the European office is that you only need to file once in English, German or French, then designate which states the patent applies to. Rothe wrote, “The procedural fees to be paid to the EPO are much higher than the fees of a single national patent office.”

Rothe added that the application practice of applicants, e. g. of those of the automotive sector, show that in many cases filing in one of the bigger European countries is as good as having a European-wide patent anyway. After all, if you have a product that can’t be used in Germany or the United Kingdom, then what good is it? In addition, at the German office, the application process can be completed faster. European IP and copyright laws are harmonized with each other to a large extent, but not with U.S. law.

German Patent Office buildingThe DPMA utilizes the “International Patent Classification” consisting of about 70,000 different classification units, and these units determine the type of examiner handles each application. The patent examiners each specialize in around 100 units. Germany requires examiners have five years of practical work in industry before they qualify for the two-year examiner training program. The European office, incidentally, does not require the same length of experience. This classification system is pan-European and is also used in Asia. Again, the U.S. has a different system.

Rothe said that about 50 percent of applications are granted, but the scope of the patent can be reduced by the examiners. After a patent is granted, opposition, appeal, and nullity procedures can follow.

Patents can be renewed annually, for a fee, up to the 20th year after filing. There are generally no options of renewing past the 20 years, although there are exceptions: for example, pharmaceutical inventions can get, after completion of the patent life of 20 years, a subsequent protection of maximally additional five years.

A key part of both applying for and examining patents is the use and creation of literature. Applicants need to cite what is presently the state of the art in their respective industries. The examiners perform a novelty search using all relevant literature. The examiners also cite all documents relevant for delimiting the claims in the application. In addition, Patent applications are published 18 months after they are filed. Non-patent literature, such as journals, play a big role in the chemical, pharmaceutical and biotech patent applications, but a smaller role in other industries like engineering.

Because of the importance of literature searching, it is no surprise that the library at the DPMA is extremely important. It has 40 staff members, 960,000 volumes, and 1,500 journals, and its two target users are the examiners and the general public. Because 80 percent of technical knowledge is only disclosed in patent documents, it is essential that the office disseminates IP information. Much of the office’s budget is spent on making office decisions, applications and so forth publicly available.

Because of its mission, the DPMA created DEPATISnet, the German patent database. (A pan-European database called esp@cenet is available from the European Patent Office.) Rothe said that the librarians thought of the functionality that was necessary for use by the public. After an RFP was distributed Europe-wide, a Berlin company won the contract to design and support the system. The DPMA’s 45 million patent archive was scanned and put into a document management system that formed the basis for the database.  In the meantime the computer center of DPMA in Munich operates DEPATISnet.

The types of searches performed in DEPATISnet range from novelty searches to monitoring, to observe what competitors are doing, and competitive analysis, to determine how your company is doing. Searching is also important when preparing for infringement lawsuits.

DEPATISnet allows for basic and advanced (Boolean) searching. Patent examiners get more sophisticated research capabilities. Although the patent information is freely available on the internet, companies can make a lot of money either offering professional search services or designing publicly available advanced databases. The information services to the public division of DPMA studies the commercial products to determine the types of advanced features should be added to DEPATISnet. While it is the policy of the government to not interfere with the commercial business, Rothe said improving DEPATISnet smoothly from year to year helps pressure the companies to improve their own products.

Munich is not just Germany’s IP capital, of course. It is also Germany’s beer capital, so it made sense to drink at the Hofbräuhaus as well. I won’t recap that, other than to say that I held my own.

Max Planck Society

Up until now, I have been posting my recaps of the Germany Parliamentary Library Study Tour in chronological order.  In this post, I am going to jump around a little bit.  The group visited two locations of the Max Planck Society (MPG – the “G” stands for “Gesellschaft”) during our trip, so I am going to combine both visits into one post.

Now, if the name of the Max Planck Society sounds familiar, you might have read a recent report about how it recently ended its contract with Springer for the publisher’s electronic journal service because it felt it was being overcharged for access.  MPG Vice President Kurt Mehlhorn said:

“Even at the very last minute the Springer publishing house had not been prepared to lower its inflated prices. The MPG therefore had had no other option but to terminate the contract.”

I wonder what Elsevier thinks about this.

Anyway, while in Hamburg, we met with Dr. Holger Knudsen, the library director at the Max Planck Institute for Comparative and International Private Law.  Later, in Munich, we met with Dr. Peter Weber and Ines Saler of the library at the Max Planck Institute for Intellectual Property, Competition and Tax Law.

Dr. WeberWeber, the head of the library, began our meeting in Munich with an overview of the MPG and its place in what he referred to as the German research landscape.  The Society is comprised of 80 institutes spread out over Germany (with one Dutch and two Italian locations).  It primarily focuses on science and technology research, but it also has institutes focusing on law and other humanities-related projects.  Each institute is run independently and determines its own research topics and research projects.

Weber said that the institutes are built around the topics its researchers set rather than having a set topic and adding researchers interested in that topic.  This means that the focus of an institute can change as new members are added.  He gave as an example the Max Planck Institute for the Study of Religious and Ethnic Diversity, which was originally the Institute for History until March of 2007.

For more about the Society and its history, check out the MPG Wikipedia entry, which I can confirm with my own notes is accurate.

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