No pleadings under the guise of the unconditional right to reply

Case No. O2013_020 ¦ Decision of 29 October 2014 ¦ “Verfügung des Bundespatentgerichts vom 29. Oktober 2014 ¦ Unbedingtes Replikrecht”


Art. 6 EMRK; Art. 29(1) BV:
Upholding the unconditional right to reply does not allow the parties to make submissions that are not yet or no longer permitted under CPC.

Further to the decision in the matter O2013_004, this is yet another landmark decision on the unconditional right to reply. In the present matter, the plaintiff had filed a submission in reply to the rejoinder of the defendant. In turn, the defendant had been invited to reply to the new requests, pieces of evidence and allegations brought forward in that submission of the plaintiff. The FPC had explicitly instructed that only comments on new matter were to be made, and that each and every allegedly new item should be identified.

The defendant filed his reply, but the FPC held that it obviously did not comply with the aforementioned requirements. In his summary, the defendant had not even addressed the prior submission of the plaintiff. Only some parts of the submission dealt with allegedly new subject-matter brought forward by the plaintiff. Other parts evidently dealt with subject-matter that had been on file beforehand (“plaintiff again re-iterates”, “plaintiff keeps insisting”), or were mere free pleading.

Regular written proceedings were concluded with the rejoinder of the defendant, with the exception that the right of the parties to be heard must be complied with. This was what the FPC’s invitation of the defendant to file a reply was all about. The FPC took the opportunity to again expand on the unconditional right to reply. Such right of course exists (cf. BGE 138 I 484, r. 2.1), but the court may nevertheless assess the admissibility of any such reply. Any submission that goes beyond the instructions of the court are inadmissible. Parties are barred from further submissions up to the main hearing (Art. 228 CPC), with due consideration of Art. 229 CPC, i.e. that presentation of new facts and evidence at the main hearing is only admissible if they are so-called proper novae or, at least, improper novae.

Attempts to circumvent these rules of procedure under the guise of a submission that was only meant to safeguard the unconditional right to reply are not appreciated by the FPC. Rather, one runs the risk that any such submission is held inadmissible.

The FPC thus set a non-extendable time limit of only a few days for the defendant to improve his submission in order to comply with the initial instructions of the FPC. Otherwise, the submission would be disregarded in toto.

Reported by Martin WILMING


Case No. O2013_020 ¦ Decision of 29 October 2014 ¦ “Verfügung des Bundespatentgerichts vom 29. Oktober 2014 ¦ Unbedingtes Replikrecht”

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  • Nullity

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE (President)
  • Susanne ANDERHALDEN (First Court Clerk)

Representative(s) of Plaintiff:

Representative(s) of Defendant:

  • Dr. Michael RITSCHER (MLL)
  • Dr. Mark SCHWEIZER (MLL)

Full text of the decision right here:

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