Request for recusal of a reporting judge held unfounded (O2012_022 cont’d)

Case No. O2012_022 ¦ Decision of 16 January 2013 ¦ “Auszug aus dem Beschluss Abweisung Ausstandsbegehren”


Art. 47 CPC: A request for recusal cannot be based on factual circumstances that are not yet reality and for which it is not yet clear whether they will ever come into existence.
(Non-official translation from German into English language)

Two orders in procedural matters have already been published by the FPC in this case; see this blog here and here. Moreover, a hearing is scheduled for 09 July 2013. It was only known by now that the plaintiff sought for a declaratory judgement of nullity in the field of pharmacy. From the present decision, it is at least clear that this case pertains to the field of androgenic alopecia (a specific kind of hair loss); cf. reasons 3 of the decision. No further details on the merits of the case are publicly available by now.

The reporting judge had provided his assessment of the case on September 16, 2012. With reply of October 26, 2012, the defendant put essentially the following requests on file:

  1. The assessement of the reporting judge shall not be relied on.
  2. A court expert with medical or pharmaceutical background, specifically in the field of androgenic alopecia, shall be appointed.
  3. The parties shall be given the opportunity to comment on the questionnaire.
  4. The reporting judge shall recuse or has to be excluded.

The present excerpt of the decision only deals with the fourth request, i.e. recusal of the reporting judge. It is the first decision being published by the FPC concerning a request for recusal of a judge (based on Art. 47 CPC).

Defendant argued that the reporting judge cannot be expected to be unbiased anymore when it comes to the assessment of the opinion provided by the court expert (since the reporting judge had already provided a written assessment himself); this would contravene the guidelines established by the Supreme Court e.g. in the case no. 4A_3/2012 (r. 2.3).

The Administrative Board of Judges of the FPC is competent to decide on such requests (Art. 11 PR-PatC). The ratio of the decision is clear-cut: It was not established yet whether a court expert will be appointed at all. Thus, the fourth request was held unfounded. Evidently, the fourth request was not construed under the condition of at least the foregoing requests 1. and 2. being granted.

As a sidenote, the Administrative Board of Judges briefly commented on the question whether the defendant should have acted earlier. Apparently, the defendant doubts that the reporting judge is technically competent enough to properly assess the specific questions at stake in the field of androgenic alopecia. However, these doubts were only brought forward when the assessment of the reporting judge was already established, but not when the reporting judge had been appointed. It thus remains to be seen whether the defendant will still be heared with his other request pertaining to the appointment of a court expert. This, however, is a question on the merits of the case which has not to be decided by the Administrative Board of Judges.

This decision of the Administrative Board of Judges is already res judicata.

Reported by Martin WILMING


Case No. O2012_022 ¦ Decision of 16 January 2013 ¦ “Auszug aus dem Beschluss Abweisung Ausstandsbegehren”

(not identified) ./. (not identified)


  • Declaratory judgement of nullity

Administrative Board of Judges of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)
  • Dr. Tobias BREMI (Second Ordinary Judge)
  • Frank SCHNYDER (Vice President)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

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3 Replies to “Request for recusal of a reporting judge held unfounded (O2012_022 cont’d)”

  1. I have received information from readers of this blog I’d like to share: I’ve been told that this case most likely relates to EP 0 724 444 B1 (pertaining to a dosage regime of finasteride for the treatment of androgenic alopecia). Indeed, this seems plausible to me. This patent is subject to litigation in various jurisdictions; cf. e.g. EPLAW Patent Blog here and here (with further reference) and the Special Edition 3 of OJ EPO 2011, p. 213-220.

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