Expert opinions not being sealed / no further explanation of prior order of the FPC (O2012_022 cont’d)

Case No. O2012_022 ¦ Order of 31 July 2012 ¦ “Ablehnung Erläuterung”

This order of the FPC relates to a prior order of 03 May 2012, commented in a separate post. The earlier order of the FPC dealt with the presentation of new evidence / nova. In brief, the FPC did not admit the expert opinions from parallel proceedings in other countries into the proceedings – except as evidence for the conclusions drawn in these expert opinions which were explicitly referred to in the writ of the defendant.

Subsequently, the plaintiff requested that the expert opinions were to be sealed until a decision of the whole case has become final, in order to prevent that a member of the board of the FPC or a court expert consults these expert opinions any further. The plaintiff argued that the human nature could otherwise prompt a non-permanent judge or a court expert to revert to these expert opinions – contrary to the gist of the prior order of 03 May 2012.

In reply, the defendant requested an explanation by the FPC as to what extent the expert opinions may still qualify as (i) evidence for statements made in earlier writs of the defendant (except for the writ accompanying the expert opinions); and (ii) counter-evidence for statements made in earlier writs of the plaintiff. With respect to the statements made in the writ accompanying the expert opinions, the defendant argued that the FPC must have access to the expert opinions as such, in order to verify the respective citations. However, the parties evidently had a different understanding of whether or not the expert opinions may still qualify as (counter-) evidence for statements made in other writs of the defendant and the plaintiff.

The FPC now reiterated that the prior order of 03 May 2012 only pertained to the writ accompanying the expert opinions, without any further necessity of explanation. Only if facts (not points of law such as e.g. novelty, inventive step or undue extension of subject matter) would remain under dispute which are legally relevant, a procedure of taking evidence will be conducted in accordance with Art. 150 ff. CPC. If the defendant then would rely on the expert opinions, the FPC would have to judge admissibility of this evidence.

The FPC further held that there is no need to seal the expert opinions. These opinions will not be further consulted anyhow, for the time being: Since it is beyond dispute between the parties that the conclusions of the two expert opinions were correctly cited by the defendant in the writ, there is no need for the FPC to revert to the evidence as such.

Kurz, das Fachrichtervotum wird erstattet werden, ohne dass Einsicht in die beiden Gutachten genommen wird, weil sie weder – über die Noveneingabe hinaus – als Parteivorbringen noch, im gegenwärtigen Stadium, als Beweismittel zu berücksichtigen sind.

Consequently, the requests of both the plaintiff and the defendant were dismissed.

Reported by Martin WILMING


Case No. O2012_022 ¦ Order of 31 July 2012 ¦ “Ablehnung Erläuterung”

(not identified) ./. (not identified)


  • Declaratory judgement of nullity

Composition of the Board of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)
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