Independence of the Boards of Appeal of the EPO: Yet another setback

News from the EPO

Case No. Art. 23 1/16 ¦ Decision of the EBoA of the EPO of 14 June 2016 ¦ “Request for a proposal for removal from office”

The potential appearance of bias has already been the subject of a few decisions of the Swiss Federal Patent Court (FPC); see this Blog here, here and — very recently — here. But let’s put it into perspective: All this really is nothing compared to the struggles at the European Patent Office with respect to the independence of their Boards of Appeal (BoA). By far the most patents litigated in Switzerland are (Swiss parts of) European patents. It is thus in the very interest of Swiss practitioners that independence of the BoA of the EPO is beyond doubt. However, the present decision (already reported on IPKat) casts light on a further setback.


HEADNOTE

For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President‘s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.


The present decision concerns a request of the Administrative Council (AC) under Article 23(1) EPC to make a proposal to remove the respondent from office. However, the Enlarged Board of Apppeal (EBoA) decided to make no such proposal. But this decision has not been taken in view of the merits of the case as such, but rather in view of a fundamental denial of the EBoA’s judicial independence. The members of the EBoA felt threatened with disciplinary measures and thus did not continue the proceedings at all.

What the heck is going on there?

As to the backround of the decision, it is important to understand that the President of the EPO, Benoît Battistelli (photo source: EPO), has directly approached the members of the Enlarged Board of Appeal (EBoA):

XXV. By a letter of 10 June 2016 the Office President, who is not foreseen as a party to these proceedings under Article 23(1) EPC and Article 12a RPEBA, wrote directly to the Chair of the Enlarged Board with copies to the other members of the Enlarged Board in its present composition.

The letter is titled “Office representation in the case Art. 23 1/16”. This letter stated:

“With due respect to the principle of independence of the Board of Appeals enshrined in Art. 23 EPC, by virtue of the powers under Art. 5(3) and 10(1)(2)(h)(i) EPC, I would like to bring to your attention certain concerns expressed in the attached position prepared by my legal counsels.”

XXVI. The attached document, an English QC’s [Queen’s Counsel] opinion, is entitled: “In the matter of a procedure in front of the Enlarged Board of Appeals”, “Position Statement for the President of the European Patent Office”. The following passages appear to be relevant for the proceedings:

“19. It will be recalled that the role of the EBoA under Article 23 EPC is to make a proposal on the removal from office, having regard to the fact that this sanction has been recommended by the DC [Disciplinary Committee of the AC] and endorsed by the AC. This article does not confer an appellate or investigative power, let alone a free standing and further fact finding mandate. The nature and extent of the evidence already available to the EBoA means that the attendance of these witnesses is not necessary for the Article 23(1) EPC proceedings to be conducted fairly and effectively.”

“21. It is quite inappropriate that a full re-hearing of the facts take place on 14-16 June; there are no vires in this forum to conduct an appeal process nor indeed to recommence an investigation; accordingly, the personal presence of any witnesses from the Office will not be required or authorised by the President.”

“23. With that in mind, the President will not, we are also instructed, hesitate to take appropriate steps available to him to orderly running of the Office and the safety of its employees.”

“27. In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable.”

“28. For all these reasons, the President deems it necessary in the interests of the whole Organisation that there is an assurance that this matter will proceed in camera and that no witnesses will be called from the Office.”

The assessment of the EBoA is straight-forward:

9.   The Respondent has raised the issue that the amendment of Article 95(3) ServRegs affects the independence of the members of the Enlarged Board because it permits any board member to be indefinitely suspended by a mere decision of the AC. This amounts to a de facto removal from office, since the suspension can be extended until the member’s five year term expires. Upon expiry of the five year term, re-appointment of the member in question can then simply be denied, without a proper Article 23(1) EPC proposal of the Enlarged Board. The Respondent has not, however, raised this issue as part of an objection under Article 24(3) EPC that is that the members of the Enlarged Board might be suspected of partiality by a party.

10.   In the light of this the Enlarged Board considers that it has to address the issue under Article 4(1) RPEBA, that is whether any members of the Enlarged Board in its current composition consider that because of the amendments made to Article 95(3) ServRegs, they should not take part in this procedure as they no longer consider themselves to be impartial and independent in their decision making.

11.   The Enlarged Board notes that the amendment to Article 95(3) ServRegs was decided upon by the AC in its December 2015 meeting, during the course of this series of proceedings. With this amendment it cannot be excluded that the suspension of the Respondent will continue to the end of his present five year term. The Enlarged Board further notes that this is possible because the period of suspension has been raised from 4 to 24 months specifically for board members, and it can now be extended by the AC in “exceptional cases”. A limit to this extension is not given, and no guidance as to what may constitute exceptional circumstances is provided.

12.   This amendment of Article 95(3) ServRegs therefore gives the possibility, de facto, to the AC to remove a member of the Boards of Appeal from office without following the procedure in Article 23(1) EPC.

13.   At the time this issue was raised in these proceedings, during the May 2016 oral proceedings, the members of the Enlarged Board, making their own individual assessment of their situation, considered that the threat to their judicial independence was a general, abstract threat that would be present in all cases before the boards, not just the present case. In fact, taking it as a reason to exclude oneself would necessarily imply that one could neither sit on any normal Board of Appeal case, nor on referrals, including petitions for review, to the Enlarged Board.

14.   This situation has now changed as a consequence of the Office President’s letter of 10 June 2016 (see para XXV above, and para 36 to 47 below).

[…]

36.   In his letter of 10 June 2016 (see quotations in point XXVI. above), the Office President expressed his view that the Enlarged Board’s decision to hold public oral proceedings was unlawful. He further elaborated that the Enlarged Board does not have the competence to determine the facts in these proceedings. Finally, he indicated that he would not hesitate to take any appropriate steps available to him to ensure the orderly running of the Office and the safety of its employees in respect of the present case.

37.   The making of an unlawful decision is clearly misconduct. Hence the general, abstract threat to the independence of the Enlarged Board resulting from the amendment of Article 95(3) ServRegs (see para 8 to 13 above) has now crystallised as a result of the Office President’s procedurally irregular intervention in these proceedings.

38.   As the present case has shown, the Office President assumes the power to investigate and to suspend members of the Boards of Appeal and bar them from the Office.

39.   In addition, he may also propose any other disciplinary measures to the AC, pursuant to Article 10(2) (h) EPC.

40.   Thus, in the presence of these facts, ascertainable by any objective observer, all present members of the Enlarged Board find themselves threatened with disciplinary measures if they continue with these proceedings in the presence of the public, and seek to determine the facts of this case. This undermines the fundamental principle of judicial independence as set out in Article 23(3) EPC. Thus the conditions of Article 23(3) EPC are not fulfilled, unless the AC as appointing and disciplinary authority for all members of the Enlarged Board, including its external members, distances itself from this position of the Office President.

41.   After having been given time during the in camera conference held on 14 June 2016 to reflect upon this situation, the Chairman of the AC made the following remarks in writing concerning the Office President’s letter and enclosure of 10 June 2016:

“… Such a communication does not emanate from a party to the proceedings. In view of the fact that the Administrative Council is only represented in the proceedings pursuant to Article 12a(2) of the rules of procedure of the EBA, it cannot take position on a communication from the Executive Head of the Office. 

In this respect, and as per Article 23 (3) EPC, the EBA members are not bound by any instruction but must abide by the provisions of the EPC. This cannot be prejudicial to them, bearing in mind that the Council is the sole competent disciplinary authority for them …”

42.   The Petitioner in this case is the AC. The AC is the appointing and disciplinary authority for the Office President (the highest ranking appointee of the AC), as well as for the members of the Enlarged Board (the highest judicial authority of the EPO). The Petitioner thus has an institutional obligation to clarify whether it endorses or not the Office President’s position as set out in his letter of 10 June 2016 and referred to above.

43.   For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.

44.   As can be derived from the statement of the Chairman of the AC, there was no clear and unequivocal declaration that the AC distanced itself from (or did not share) the Office President’s position. In such a situation, the Enlarged Board cannot legally continue with these proceedings. As a consequence it cannot make a proposal to the Petitioner to remove the Respondent from office.

45.   Thus to summarise, the Enlarged Board was reduced to the following alternatives:

— either, to take an “unlawful decision”;

— or, to take a “lawful decision” according to the demands of the Office President, i.e. setting aside its decision on the public oral proceedings and taking as granted the facts established in the IU Report and/or the DC’s opinion.

46.   In either case, the respective decision would be inherently vitiated because it would have been made under pressure from the executive and without the serenity and independence needed for a fair trial.

47.   The intervention of the Office President, and this intervention alone, prevented the Enlarged Board from continuing the proceedings as had been planned (see above points XVI to XXI), from examining the case on its substantive merits as put forward by the Petitioner, and from establishing whether serious grounds for the removal from office of the Respondent existed in accordance with Article 23(1) EPC.

Frankly speaking, this further twist in the removal-from-office saga at the EPO leaves me in unbelieving astonishment. I remain keen to learn about the Office President‘s and/or the AC‘s reaction on this. If proof was needed that things cannot go on the way they are right now, this might be it.

Reported by Martin WILMING


BIBLIOGRAPHY

Case No. Art. 23 1/16 ¦ Decision of the EBoA of the EPO of 14 June 2016 ¦ “Request for a proposal for removal from office”

Administrative Council of the European Patent Organisation ./. Respondent (n/a)

Composition of the EBoA:

  • Marie-Bernadette TARDO-DINO (Chairman)
  • Ele LIIV*
  • Anna DIMITROVA*
  • Ingo BECKEDORF
  • David ROGERS
  • Ulrich OSWALD
  • Hugo MEINDERS

External, legally qualified members of the EBoA according to Art. 11(5) EPC are marked with an asterisk (*).


FULL TEXT OF THE DECISION

Download (PDF, 517KB)

Annual report 2015

The FPC’s Annual Report 2015 has been published earlier today; see below. I could not spot anything out of the ordinary at first glance, in addition to the sneak preview.

International litigants will appreciate that the FPC strives to further improve the overall setup for simultaneous tranlation at hearings:

A currently unresolved issue is the lack of interpreter booths at the Federal Administrative Court. As a result, temporary ad hoc solutions need to be found each time interpreters are needed to facilitate communication between international litigants. This happens more regularly at the Federal Patent Court than at the Federal Administrative Court. The two institutions are currently working on ways to address this issue.

Reported by Martin WILMING

Download (PDF, 357KB)

Would you like to be notified of new posts? Here you go.

Some thoughts on the urinal question (O2014_002)

Case No. O2014_002 ¦ Decision of 25 January 2016 ¦ “Urinalventil: Teilweise Gutheissung Patentverletzung, Äquivalenz, Auskunft und Rechnungslegung, Verjährung”

HEADNOTE

Art. 109 PatA; Art. 69 EPC; Protocol on the Interpretation of Article 69 EPC of 05 October 1973 as revised by the Act revising the EPC of 29 November 2000; Art. 66 para. 1 lit. a PatA: imitation (equivalence), accessibility.

The assessment of accessibility is not to be confused with the assessment of inventiveness. Starting point for the assessment of accessibility is not the general state of the art, but the patent in suit. Therefore it is not to be assessed whether the replaced feature is inventive in view of the state of the art. It is rather to be assessed whether, starting from the teaching of the patent in suit, it is evident for the skilled person that the replaced feature has the same effect (r. 6.5.2.4).
(Clarification of the case law with respect to S2013_001, decision dated 21. März 2013)

The decision is a booklet of 82 pages and it will take me some more time to finish a post on all aspects of the decision. The main hearing took place on 14 September 2015; see this Blog here for some background information on the subject-matter at stake. But the highlight for sure is the headnote which is meant to clarify an important issue in the assessment of equivalence, i.e. the second question relating to accessibility (Auffindbarkeit). So I bring forward this part of the story.

The plain wording of the second question outlined in the hn of S2013_001 may well have caused some confusion. It reads as follows:

Werden die ersetzten Merkmale und deren objektiv gleiche Funktion dem Fachmann durch die Lehre des Patentes nahe gelegt?

Literally (and inofficially) translated:

Are the replaced features and their objectively same function rendered obvious by the teaching of the patent to the person of skill in the art?

Obviousness is a word that practitioners readily associate with assessment of inventive step. In any event, the FPC has now clarified that this must not be mixed up. According to the hn, the following is to be assessed instead (in the official English translation of the hn):

Starting from the teaching of the patent in suit, is it evident for the skilled person that the replaced feature has the same effect?

In the German language of the proceedings, the relevant section of the hn reads as follows:

Ist bei ausgetauschten Merkmalen die Gleichwirkung für den Fachmann bei objektiver Betrachtung ausgehend von der Lehre des Patents offensichtlich?

My first reaction was ‘Alright, got it, that’s the 2nd Schneidmesser question as applied in Germany, with mild Swiss tones.’ On a second thought, I do not think it is. It is a Urinal question. The reasons of the decision even make this clearer (r. 6.5.2.4, referred to in the hn; emphasis added):

Zu beurteilen ist, ob, wenn die Merkmale ausgetauscht sind, die Gleichwirkung für den Fachmann bei objektiver Betrachtung unter Berücksichtigung der Lehre des Patents offensichtlich ist.

Inofficially translated into English:

It is to be determined whether, once the features are replaced, the same effect is evident for the person of skill in the art when objectively assessed in consideration of the teaching of the patent.

While the hn requires “starting from the teaching of the patent” (“ausgehend von der Lehre des Patents”), the reasons only take the teaching of the patent into consideration (“unter Berücksichtigung der Lehre des Patents”). But when doing what? In light of the reasons, this test compares two already given situations (one with the replaced/claimed feature and another one with the replacing feature) and only then asks whether the same effect is evident. To the contrary, the wording of the concise, yet finely chiselled second question in Germany is (see Schneidmesser I, BGH X ZR 168/00, r. 3a, emphasis added):

Was the person skilled in the art enabled by his expertise to find the modified means as having the same effect?

Haben seine Fachkenntnisse den Fachmann befähigt, die abgewandelten Mittel als gleichwirkend aufzufinden?

This clearly asks for the capability of the person of skill in the art to actually find the replacing means (in their capacity to have the same effect). Schneidmesser does not make a comparison of two already given scenarios and – only based theron – an assessment of whether or not the same effect is evident. And Prof. Dr. Meier-Beck (a member of the panel of judges that has issued the Schneidmesser decision) emphasizes that this is intentional:

This question is all about excluding those cases in which an inventive step was necessary to find the modified means as having the same effect. If that is the case, i.e. if the means having the same effect were not obvious to the person skilled in the art, they are outside the scope of the patent (BGH Oct. 24, 1986, Case No. X ZR 45/85, (Befestigungsvorrichtung [Fixing Device])). Because what the person skilled in the art is not able to find and to do based on the patent and helped by his or her knowledge in the art, is not to be granted to the patentee (BGH May 15, 1975, Case No. X ZR 35/72, (Ski-Absatzbefestigung [Ski Heel Attachment])). Else, the fundamental bargain underlying most patent regimes is violated — i.e. that a patent is an exclusive right granted for a limited period in exchange for certain technical teaching made available by the patentee to the public, by publication of the patent.

(Meier-Beck in Pumfrey, Nicholas; Adelman, Martin J.; Basheer, Shamnad; Dave, Raj S.; Meier-Beck, Peter; Nagasawa, Yukio; Rospatt, Maximilian; and Sulsky, Martin (2009) “THE DOCTRINE OF EQUIVALENTS IN VARIOUS PATENT REGIMES — DOES ANYBODY HAVE IT RIGHT?”, Yale Journal of Law and Technology: Vol. 11: Iss. 1, Article 9. Available here.)

But let’s again have a look at the reasons of the decision S2013_001, r. 17.2: In light of various Supreme Court decisions (BGE 97 II 85, r. 1; BGE 125 III 29, r. 3b; BGE 115 II 490, r. 2a), it was held that it has to be asked whether the replacing means are rendered obvious by the teaching of the patent for the person of routine skill in art, “henceforth referred to as the second question” (“nachstehend als zweite Frage bezeichnet”). In the next paragraph, the second Schneidmesser question is recited and it was held, that this question equates with the aforementioned second question (“entspricht obiger zweiter Frage”). This is why I felt that the Swiss approach to the second question actually resembles Schneidmesser. With the reasons of the present decision at hand, I doubt that this is the case.

It may well be that the answers to the second Schneidmesser question and the Urinal question are the same in some situations. But in my perception this is not necessarily the case. Assume that the replacing feature is taken from a completely different field of technology. Once it is on the table, it may well be the case that the same effect is evident for the person of routine skill in the art, in consideration of the teaching of the patent. But would he ever have actually found it (not only as having the same effect, but maybe even at all)? I do not think that the Urinal question clearly addresses this. Instead, it seems to me that the Urinal question is more along the lines of the second Improver question in the U.K. ([1990] F.S.R. 181; Chancery Division (Patents Court), 16 May 1989), which reads as follows:

Would this (i.e. that the variant had no material effect) have been obvious at the date of publication of the patent to a reader skilled in the art?

I remain keen to learn how the Urinal question will henceforth be applied in practice.

Reported by Martin WILMING (to be cont’d)

— BIBLIOGRAPHY —

Case No. O2014_002 ¦ Decision of 25 January 2016 ¦ “Urinalventil: Teilweise Gutheissung Patentverletzung, Äquivalenz, Auskunft und Rechnungslegung, Verjährung”

Daspaco AG ./. Von Allmen AG

Board of Judges:

  • Dr. Dieter BRÄNDLE
  • Dr. Tobias BREMI
  • Dr. Christoph GASSER
  • Dr. Ralph SCHLOSSER
  • Werner ROSHARDT

Court Clerk

  • Susanne ANDERHALDEN

Reporting Judge:

  • Dr. Tobias BREMI

Representative(s) of Plaintiff:

Representative(s) of Defendant:

  • Matthias STÄDELI (Rentsch)
  • Dr. Demian STAUBER (Rentsch)
  • Dr. Jens OTTOW (Rentsch), assisting in patent matters
  • Dr. Alfred KÖPF (Rentsch), assisting in patent matters

— FULLTEXT —

Download (PDF, 802KB)

— BE ON THE KNOW —

You liked this? And you would like to be notified of new posts? Here you go.

Ad hoc news via Twitter

@FPCreviewSometimes it takes me a while to draft a meaningful and reasonably investigated post; I am not going to spoil this Blog with half-baked stuff. On the other hand, I’d like to share information that is readily available as soon as possible. I will use Twitter (@FPCReview) from now on to share such advance information.

Starting off right now (if you haven’t seen the tweet already):

Upfront payment of court fees reduced by half

The FPC has just announced a change of court practice on the internet, as follows:

As from now in ordinary proceedings the plaintiff is invited to pay an advance on only half of the expected court costs for a decision, which corresponds to the expected court costs up to and including the instructional hearing (Art. 98 CPC).

This will relieve plaintiffs from a significant share of their upfront costs when bringing a suit, and it reflects the very high share of cases being settled at the occasion of the instructional hearing.

Guidelines for the court fees are given in Art. 1 CostR-PatC, recited below (in CHF). I have added a third column to reflect the new advance payment regime:

Value in dispute Court fees Advance payment
up to 50’000 1’000 – 12’000 500 – 6’000
50’000 – 100’000 8’000 – 16’000 4’000 – 8’000
100’000 – 200’000 12’000 – 24’000 6’000 – 12’000
200’000 – 1’000’000 20’000 – 66’000 10’000 – 33’000
1’000’000 – 3’000’000 60’000 – 120’000 30’000 – 60’000
3’000’000 – 5’000’000 80’000 – 150’000 40’000 – 75’000
over 5’000’000 100’000 – 150’000 50’000 – 75’000

Reported by Martin WILMING

Newly elected judges

The FPC had been seeking three further chemists as non-permanent judges; see this Blog here. The new judges have been elected on June 17, 2015. The Federal Assembly followed the nomination of the Judicial Committee of the Federal Assembly and elected

  • Dr. Andreas SCHÖLLHORN SAVARY
  • Dr. Martin SPERRLE
  • Dr. Hannes SPILLMANN

See the minutes of the election for further details (in French language).

Note that one of the non-permenent judges with a background in chemistry, Dr. Erich WÄCKERLIN, will retire on December 31, 2015. Thus, there will only be two two further chemist in the pool of non-permanent judges.

Reported by Martin WILMING

Annual Report 2014 published

The FPC has published the 2014 Annual Report earlier this week; it is available in English, German, French and Italian language. The English version is incorporated hereinbelow. All the statistics are pretty much self-explanatory, and I will thus only highlight some of my personal take-away messages.

Settlement by compromise

The FPC had aimed at a high rate of settlements by compromise from the very beginning. A ratio of 50% was estimated already back in May 2012 (see Neue Zürcher Zeitung). However, an extremely high 89% share of the main proceedings had been settled by compromise in 2013. Maybe surprised by its own success, the FPC guessed that this was an exception and reiterated the estimation of 50% in the 2013 Annual Report:

This 89% ratio of cases settled by compromise will probably remain an exception. […] The Federal Patent Court expects […] a settlement by compromise in around 50% of the cases, […]. […], it is unlikely that an average ratio exceeding the 50% threshold can be achieved over time.

In 2014, the 50% estimate is again exceeded by far. An impressive 85% share of the main proceedings has been settled by compromise last year. Even in summary proceedings, the share of settlements by compromise is remarkably high (50%).

Fig. 1: Share of cases settled by compromise in 2014 [%]

Despite the still limited data basis after only 3 years of operation, outstandingly high ratios of settlement by compromise tend to be the rule rather than the exception. Consequently, the FPC has re-set the estimate:

The Federal Patent Court therefore strives to reach mutually acceptable compromises in its handling of cases. […] The Federal Patent Court initially expected that this approach would result in a settlement by compromise in around 50% of the cases, […]. […], the Federal Patent Court now feels that it is possible to maintain the ratio more or less at current levels. This is fairly remarkable considering that similar patent courts in Germany, France, the Netherlands and the United Kingdom rarely reach such an outcome. Over time, such outcomes achieved by the Federal Patent Court will have a positive impact on the number of incoming cases.

It will indeed be interesting to see how the share of settlements by compromise — and the impact on the number of incoming case numbers — develops over time.

Case numbers in main proceedings

Let’s have a look at the regular proceedings only. How are the case numbers developing?

EASY CHART BUILDER SHORTCODE ERROR

  • Check for misspelled parameters (case matters)
  • Check for new lines (all must reside on one long line)
  • Error near [0], [01,in,out,Dec]

  • For assistance, please visit http://www.dyerware.com/main/products/easy-chart-builder

    Fig. 2: Case numbers 2012-2014 (regular proceedings)

    The number of incoming cases is represented by the red bar in Fig. 2 above. Note that 32 of the 43 incoming cases in 2012 had been transferred from cantonal courts. Therefore, the very high figure in 2012 was clearly an exception. But 2013 and 2014 are quite comparable: In 2013, only one of the 23 incoming cases had been transferred from a cantonal court, and apparently none in 2014. A significant decrease of incoming cases by more than 30% is to be noted (2013: 22; 2014: 17), but this may well be within a regular fluctuation range.

    On the other hand, the FPC is no longer in its start-up phase. As a consequence, it could settle more cases (regular proceedings) in 2014 than in the years before; see the green bar in Fig. 2 above.

    Strong emphasis on chemistry

    About 50% of all cases received by the FPC require assistance from chemists, and some of these cases are highly complex. On the other hand, only 7 of the 25 non-permanent judges with a technical training are chemists. Therefore, the FPC currently seeks three additional non-permanent judges specialised in chemistry.

    Reported by Martin WILMING

    — ANNUAL REPORT 2014 —

    Download (PDF, 295KB)

    Non-permanent judges: Chemists wanted!

    The Judicial Committee of the Swiss Federal Assembly is seeking a further three non-permanent judges with a technical background in chemistry for the FPC. Applications are to be submitted by no later than April 8, 2015. Please revert to the job ad (online) or below for further information.

    3 nebenamtliche Richterinnen und Richter am Bundespatentgericht

    Das Bundespatentgericht ist das Spezialgericht des Bundes für Streitigkeiten über Patente. Es hat seinen Sitz in St. Gallen.

    Die Gerichtskommission schreibt drei Stellen für nebenamtliche Richterinnen und Richter mit technischer Ausbildung aus. Sie richtet ihre Stellenausschreibung spezifisch an

    Chemikerinnen und Chemiker

    Sie verfügen über ein abgeschlossenes Chemiestudium an einer Hochschule sowie eine langjährige Berufserfahrung im Patentrecht als Patentanwältin / Patentanwalt mit Spezialisierung im Bereich Chemie. Sie werden vom Gericht fallweise beigezogen und sind deshalb zeitlich flexibel verfügbar. Ihre Hauptsprache ist Deutsch. Sie verfügen über gute Kenntnisse einer zweiten Landessprache sowie sehr gute Englischkenntnisse.

    Auskünfte zu den Stellen erteilt Herr Dieter Brändle, Präsident des Bundespatentgerichts (+41 58 705 21 13).

    Informationen zum Bundespatentgericht finden Sie im Internet unter http://www.patentgericht.ch/

    Auskünfte zur Bewerbung und zum Wahlverfahren erhalten Sie bei Frau Christine Lenzen, Sekretärin der Gerichtskommission, Tel. +41 58 322 94 26.

    Ihre Bewerbung mit Lebenslauf, Kopien von Diplomen und Arbeitszeugnissen, Straf- und Betreibungsregisterauszug sowie Passfoto richten Sie bitte bis zum 8. April 2015 an:
    Sekretariat der Gerichtskommission, Parlamentsgebäude, 3003 Bern

    Reported by Martin WILMING

    ECC sues Nestlé, Eugster/Frismag, Turmix and Koenig for patent infringement

    Today, it’s in the news that Ethical Coffee Company has sued Nestlé Eugster/Frismag (coffee machine manufacturer) and the distributors Turmix and Koenig for patent infringement last Friday at the FPC. In official publications of the FPC, this case has not yet surfaced. Corresponding proceedings are said to be pending in France. Alleged values in dispute are extremely high: EUR 150m in France, tens of billions(!) of CHF in Switzerland.

    ECC ./. Nestlé

    Apparently, a barbed hook mechanism is at stake. From a brief search, I tend to assume that EP 2 312 978 B1 is at stake. Not only does said patent concern a barbed hook mechanism, but Nestec SA and Nespresso France are opposing said patent, too; see the EPO patent register for further details.

    Reported by Martin WILMING

    Review of the 2013 Case Law of the FPC, by Cyrill P. Rigamonti

    In its second operative year, the FPC has issued some important decisions any practitioner should know and understand. Don’t have the time to wade through all these decisions? Well, then this Blog is made for you, anyhow. And you might also want to study the review (in German language) authored by Prof. Dr. Cyrill P. RIGAMONTI which is available for download on his list of publications here (preview embedded below). Many thanks to Prof. RIGAMONTI for sharing this review. It definitly makes a good reading:

    GDE Error: Error retrieving file - if necessary turn off error checking (404:Not Found)

    Searching decisions in the database of the FPC with a detailed query form

    A “simple search” for decisions had already been available on the FPC website since the very beginning, but I have noticed only recently that the FPC has meanwhile enabled much more detailed database queries:

    Database query / search for FPC decisions

    A manual is also available. This search interface is definitely a valuable tool.

    Note, however, that indexing is not exhaustive (e.g., a search for “Costs: Legal aid” in field “GL” does not result in any hits, but there are published cases that inter alia deal with this topic — but the respective tag has not been assigned).

    Moreover, there is apparently a difference between the two fields “GL” and “GS”: Both are entitled “Subject”, but searching those fields with the same query yields completely different results. For instance, searching for “Assignment of patent” in field “GL” yields O2012_012 and S2012_009. However, searching for “Assignment of patent” in the field “GS” only results in S2012_005 — a hit that is not at all produced in the field “GL”.

    Job opportunity: Court clerk at the FPC

    Ms. Susanne ANDERHALDEN is currently the only clerk listed on the website of the FPC. Mr. Jakob ZELLWEGER (formerly First Court Clerk) is no longer listed. Today, an ad has been taken out on the website of the FPC. There is a job opportunity as a court clerk at the FPC:

    Job opportunity: Court clerk at the FPC

    Applications are to be submitted by 30 June 2014. Please refer to the above job posting for further information.