More haste, less speed

Case No. S2017_001 ¦ Order of 16 January 2017¦ “Abweisung superprovisorische Massnahme”

Note that Hepp Wenger Ryffel is involved in this matter on behalf of the defendant.

The patentee / plaintiff requested interim injunctive relief to be ordered without hearing the defendant beforehand, in view of special urgency. The FPC did not do so. In principle, the President could decide in the capacity of a judge sitting alone in summary proceedings (Art. 23(1) lit. b PatCA). But the present matter requires the assessment of patentability of the patent in suit; both parties are engaged in co-pending nullity proceedings at the FPC. In such cases, i.e. where the understanding of a technical matter is of particular significance, decisions must be made in a panel of three; see Art. 23(3) PatCA. It takes some time to staff the panel of judges from the pool of non-permanent judges who have to do a thorough check for conflicts. It would be unbalanced to not hear the defendant meanwhile since this will not delay the decision as such. The defendant has thus been ordered to file a response within only seven days. This short time was held appropriate since both parties are well acquainted with the subject-matter at stake from the co-pending nullity proceedings.

On the procedural side, there are two further aspects to note. First, the plaintiff had drafted its submission in English language, with reference to an agreement between the parties in this respect in co-pending nullity proceedings. The President held that this does not necessarily imply consent to the use of English language in the present proceedings — but provisionally and in the absence of an immediate information of the defendant to the contrary, consent will be assumed. Second, the President notes that a hearing on short notice might be necessary. A date will be fixed by way of precaution, as soon as the panel of judges is staffed.

Reported by Martin WILMING


Case No. S2017_001 ¦ Order of 16 January 2017¦ “Abweisung superprovisorische Massnahme”

n/a ./. n/a

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE

Court Clerk:


Representative(s) of Plaintiff:

Representative(s) of Defendant:


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