Annual Report 2017 reveals all-time high of incoming cases

The official Annual Report 2017 of the FPC has been published earlier today, together with a press release. It comes along with an official Executive Summary as follows:

Compared to the previous year, the total number of incoming cases increased to 34 (27 in the previous year). The increase was attributed to ordinary proceedings (26, 18 in the previous year), while the number of summary proceedings remained practically the same (8, 9 in the previous year).

During the reporting year the Federal Patent Court handled 15 ordinary proceedings, of which 10 were disposed of by compromise and 5 by judgment. A total of 9 summary proceedings were disposed of during the reporting year, 4 of which were settled by compromise and 5 were decided by judgment.

The current president, Dieter Brändle, resigned at the end of the reporting year due to his age. Mark Schweizer, former non permanent judge with legal training, was elected as his successor. Four of the non-permanent judges with technical training resigned at the end of the term of office, the others were reelected. Moreover five new non-permanent judges with technical training were elected. All of the non-permanent judges with legal training except for the new president were reelected, and three new judges with legal training were elected. All newly elected judges take office on 1 January 2018.

It is always good to put isolated annual numbers into perspective. So let’s have a look at the bigger picture, taking the whole time of operation of the FPC since 2012 into consideration. The overall number of incoming cases per year increased once again, after two years of declining numbers before. The number of incoming cases has reached an all-time high in 2017, which is indicative of the high reputation that the FPC has gained meanwhile both on a national and international level.

Noteworthy, the increase can be solely attributed to main proceedings.

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The overall number of concluded cases remained stable; a slight decline of concluded main proceedings is outweighed by more concluded summary proceedings.

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The backlog of cases reached an all-time high in 2017. Still, I do not feel that this is something to worry about.

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The number of settlements by compromise has recovered again to a share of 67% in main proceedings (2016: 47%) and 44% in summary proceedings (2016: 29%).

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On a sidenote, it is clear from the small print that a submarine case has finally been buried in 2017, after a pendency of record-breaking 1’335 days at a cantonal court and 1’885 days at the FPC, i.e. 3’220 days or a little less than 9 years in total.

Two main proceedings are already pending since more than two years; it is pretty evident that these cases are O2015_008 and O2015_009.

And how is all this perceived by the users? Well, you never really know until you ask …

So the FPC did ask! And the feedback is positive:

The information provided by the Court on the courses of proceedings and jurisdiction was deemed to be very good. Likewise more than 80 % of respondents are satisfied or very satisfied with the courtesy and cooperation of the Federal Patent Court dealing with inquiries, and with the quality, reliability and promptness of information. […]

78% of the respondents evaluate the clarity and traceability of the reasons given for the decisions with 3 or higher on a scale from 1 to 5.

The FPC also asked specific questions relating to procedural issues, e.g. about timing:

Practically all respondents deemed durations of proceedings and time-limits to be appropriate. In case of summary proceedings about one fourth of the respondents would like faster proceedings.

There is obviously no need to take any urgent action here. On the contrary, there are two other topics that might actually lead to a change of practice:

Two thirds of the respondents would like an instructional hearing after the first correspondence even if this is requested by one party only.

A few respondents would welcome it if after failed settlement proceedings binding terms for the further procedural steps were fixed by agreement with the parties.

The Federal Court takes suggestions by the users seriously and examines if instructional hearings can be held on a regular basis even if requested by one party only and how the proposal to fix binding terms for the further procedural steps at an early stage can be realized.

The question relating to instructional hearings had already been included in the questionnaire. Moreover, the FPC now apparently examines how to hold instructional hearings on a regular basis after the first exchange of briefs even if requested by one party only. A contrario, this suggests that it may well be done (or has already been done?) exceptionally in any event.

As to the second topic, it is clear from the German version of the Annual Report (page 8) that terms is to be understood as dates (‘Termine’).

Reported by Martin WILMING

PRESS RELEASE

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ANNUAL REPORT 2017

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