Combining a counterclaim with a main claim against a party which hasn’t sued you?

Case No. O2016_016 ¦ Decision of 16 May 2017 ¦ “Einbezug zusätzlicher Parteien mit Widerklage”

HEADNOTE

Art. 64 CPC; Fixation of the parties to the proceedings.

Litispendence results in a fixation of the parties to the proceedings. Further parties cannot be included into pending proceedings – except for an admissible substitution of a party (Art. 83 CPC) or for other reasons provided by law.

The setup of this case is straightforward: A had sued B for nullity of the patent in suit. B lodged a counterclaim for infringement against A with his reply.

In the very same proceedings, B also sued X AG and Y GmbH for infringement. B argued that this voluntary joinder was admissible in view of Art. 71 CPC: the duties of all these parties result from similar circumstances, ie cooperation with respect to the alleged infringement of the patent in suit.

However, the President held that the parties are fixed upon litispendence; Art. 62 and Art. 64 CPC. Exceptions would only be the admissible substitution of a party (Art. 83 CPC) or other reasons provided by law — which have not been applicable here. A voluntary joinder under Art. 71 CPC would have been possible, but only in separate proceedings.

The President thus dismissed the cases against X AG and Y GmbH for lack of a procedural requirement; Art. 59(1) CPCArt. 23(1) lit. a PatCA.

Court fees of CHF 10’000,– have been imposed on B. No party compensation has been awarded: There was no need to even invite X AG and Y GmbH to file reply.

Reported by Martin WILMING

P.S.:
Admittedly, I am frustrated that I have no clue about the parties this time …

BIBLIOGRAPHY 

Case No. O2016_016 ¦ Decision of 16 May 2017 ¦ “Einbezug zusätzlicher Parteien mit Widerklage”

A AG
(Nullity claimant; defendant in countersuit re infringement)

X AG
(Defendant re infringement)

Y GmbH
(Defendant re infringement)

./.

B
(Nullity defendant; counter-claimant re infringement)

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE

Court Clerk:

  • Esther SCHEITLIN

Representative(s) of A AG:

Representative(s) of B:

  • Dr. Simon HOLZER (MLL)
  • Dr. Mark SCHWEIZER (MLL)
  • Dr. Dirk BÜHLER (Maiwald), assisting in patent matters
  • Dr. Andreas LEDL (Maiwald), assisting in patent matters

DECISION IN FULL

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