Urgency of interim measures without hearing the defendant

Case No. S2012_009 ¦ Order of 12 June 2012 ¦ “Zuständigkeit für summarische Verfahren ausserhalb der exklusiven Zuständigkeit; keine besondere Dringlichkeit”

Hepp Wenger Ryffel AG / Martin WILMING is involved in this case on behalf of the plaintiff. No detailed comments on the merits will be made here. However, two legal aspects of this order may be of general interest:

First, the FPC held that its competency also extends to interim measures to be taken

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Substantiation of statements in writ by reference to physical records / applicable Procedural Code

Case No. O2012_022 ¦ Order of 3 May 2012 ¦ “Anwendbares Prozessrecht, Berücksichtigung ausländischer Gerichtsgutachten”

This nullity case regarding the Swiss part of a European patent filed on 18 July 2008 with the Commercial Court of the Canton of Zurich was transferred to the FPC on 17 January 2012. As of 1 January 2012, the FPC has become the competent court according to Art. 41 in conjunction with Art. 26 PatCA.

After transfer of

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Saisie helvétique: Precautionary taking of evidence, extent of substantiation of infringement

Case No. S2012_006 ¦ Decision of 27 April 2012 ¦ “Voraussetzungen vorsorglicher Beweisführung gemäss Art. 158 Abs. 1 ZPO

Introductory remarks: Under the regime of the Swiss Civil Procedure Code (CPC, Art. 158), a court shall take evidence at any time if the law grants the right to do so; or the requesting party shows credibly that the evidence is at risk or that it has a legitimate interest. Art. 77

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Claim dismissed for lack of right of action

Case No. O2012_010 ¦ Decision of 28 March 2012 ¦ “Aktivlegitimation”

The patent in suit (Swiss patent CH 683 963 A5; cf. Fig. 4 below for illustrative purposes) pertains to an implant which serves for the stiff connection of vertebrae of the spinal column:


The application was filed in 1988 by the defendant. In addition to Mr. Robert Mathys (jun.), Prof. Dr. Max Aebi was identified as an inventor. Mr. Aebi had assigned his

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Infringement not established, claims prima facie not novel: Preliminary injunction denied

Case No. S2012_004 ¦ Decision of 24 March 2012 ¦ “Schneidvorrichtung für Stickmaschinen”

This case was transferred to the FPC from the Cantonal High Court of Thurgau on 18 January 2012. Preliminary injunction was requested based on the patents CH 701 638 B1 and EP 1 985 736 B1. Note that Swiss patents are not examined with respect to novelty and inventive step – in contrast to European patents. Not only infringement, but also

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Beware of trade names of allegedly infringing products in requests for injunctive relief

Case No. S2012_002 ¦ Order of 7 March 2012 ¦ “Formulierung von Rechtsbegehren”

In this interlocutory order, the FPC again objected the wording of a request for injunctive relief (cf. also case S2012_003 for further reference to the case law of the Federal Supreme Court in this respect). Here, the request merely referred to a specific product identified by its trade name and by reference to a flyer pertaining to this allegedly infringing product. However,

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Obscurity of the claim: Case not considered

Case No. O2012_012 ¦ Decision of 20 February 2012 ¦ “Nichteintreten”

This is a somewhat weird case. The claim was not at all comprehensible. It only became clear that the plaintiff alleged to be a licensee of EP 1 449 391 B1, owned by Zoltan Pal. However, neither the defendant was identified, nor the alleged infringement or any details concerning the license contract. Anyhow, license fees of some hundred million CHF were alleged to

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No plaintiff: Case not considered

Case No. O2012_029 ¦ Decision of 6 February 2012 ¦ “Nichteintreten”

A claim for outstanding money was pending before the commercial court of the Canton of Zurich. On 26 January 2012, the case was transferred to the FPC, in accordance with Art. 41 PatCA. However, the FPC noted that the plaintiff was already cleared from the Commercial Register on 28 December 2011. Consequently, the FPC did not consider the case, in view of the

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Request for preliminary injunction reaching beyond scope of patent

Case No. S2012_003 ¦ Decision of 2 February 2012 ¦ “Dichtungsvorrichtung für Spannzange” 

Based on a case that was transferred from the Commercial Court of the Canton of Berne on 27 December 2011, this first decision of the FPC has meanwhile become final. The crucial point was the wording of the request for preliminary injunction. The FPC held that the request reached beyond the actual scope of the patent. Thus, the request was dismissed:


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