Competency of the FPC at the borderline of public and civil law

Case No. O2012_021 ¦ Order of 7 June 2012 ¦ “Zuständigkeit”

This case pertains to the performance-related heavy vehicle fee (HVF) levied in Switzerland. The Robert Bosch LLC of Germany (plaintiff) is patentee of EP 0 741 373 B1, entitled “System for detecting the distance travelled by a vehicle in a given area”; cf. Fig. 4 for illustative purposes below.


In May 2011 the plaintiff had sued the Swiss Confederation for patent infringement with the Commercial Court of the Canton of Zurich, requesting injunctive relief and damages. In December 2011 the defendant denied the competence of the (civil) court, without expanding further on the merits of the case. It was alleged that the use of the HVF-registering system was a sovereign action / in public interest and that, as a result, the court was not competent. The case was transferred in January 2012; the FPC then had to decide on its competency and whether public or civil law is applicable.

The Federal Act on Invention Patents contains two clauses concerning the restriction of patent rights due to public interest: Art. 40 pertains to the grant of a licence in public interest to use an invention when such a licence is, without sufficient reason, refused by the owner of the patent; such licence is to be asserted in civil proceedings. The second clause (Art. 32) provides for the whole or partial expropriation of a patent by the Federal Council, if public interest so requires. This measure is governed by public law, according to the Federal Act on Expropriation (Art. 16 ff.). The FPC held that both regulations are not applicable in this case since the defendant did not initiate any one of the said actions beforehand, but instead put up with the consequences of a potential patent infringement.

The FPC also expanded on the argument of the defendant that the use of the HVF-registering infrastructure is of sovereign character: It was held that the relation to assessable persons (towards whom the Swiss Confederation acts in sovereign manner) is to be distinguished from the relation to the plaintiff.

Furthermore, the defendant argued that the case is to be dealt with under public law as the HVF-registration system was installed in accordance with a public submission procedure. However, the FPC held that this does not qualify the case as a matter of public law because it cannot be investigated in public law proceedings whether the patent of the plaintiff is infringed or not.

Finally, the FPC considered the various criteria developed by the Federal Supreme Court to distinguish between litigations governed by public and civil law (cf. inter alia BGE 123 III 346, r. 1a; BGE 120 II 11, r. 2a). The FPC held that the plaintiff confronts the defendant as a coequal legal entity and that the requested legal remedies further support the assumption that civil law is to be applied to the present case.

Consequently, the FPC decided to consider the case as the competent court (Art. 59 para. 1 in conjunction with Art. 237 para. 1 CPC).

(Update 10 April 2013: This decision of the FPC was partly overruled by the Supreme Court; see this blog here.)

Reported by Martin WILMING and Jennifer BOESE


Case No. O2012_021 ¦ Order of 7 June 2012 ¦ “Zuständigkeit”

Robert Bosch GmbH ./. Swiss Confederation (represented by the Federal Department of Finance)


Composition of the Board of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President, Chairman)
  • Dipl. El. Ing. ETH Daniel VOGEL (Judge)
  • Dr. iur. Christoph GASSER (Judge)
  • Dr. iur. Christoph WILLI (Judge)
  • Dr. sc. techn. ETH Markus A. MÜLLER
  • Lic. iur. Jakob ZELLWEGER (First Court Secretary)

Representative(s) of Plaintiff:

Representative(s) of Defendant:

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