Requests for legal aid and recusal of the President of the FPC dismissed

Case No. S2013_009 ¦ Decision of 29 January 2014 ¦ “Ausstand wegen Vorbefassung”

The plaintiff filed a (so-called) draft of a writ for patent infringement on 08 October 2013, together with a request for legal aid (Art. 117 ff CPC). Moreover, he requested that both permanent judges, Dr. Dieter BRÄNDLE and Dr. Tobias BREMI, were to recuse.

The plaintiff’s rationale of the request for recusal of Dr. Tobias BREMI is not readily apparent from the decision, but since the President of the FPC will have to decide on the request for legal aid as a single judge, there is no legitimate interest in his recusal anyhow (Art. 23(1) lit. c PCA; Art. 59(2) lit. a CPC).

On the other hand, the request for recusal of Dr. Dieter BRÄNDLE was based on his earlier involement in a similar case, as follows:

The plaintiff had already sued the Swiss Confederation and three companies for patent infringement on 08 July 2002 at the Commercial Court of the canton of Zurich. He had also requested legal aid then. This request was dismissed and the plaintiff was obliged to provide a procedural deposit of CHF 800’000,–. The plaintiff then exhausted all remedies and a run through various levels of review began. This first decision was lifted by the Court of Cassation of the canton of Zurich on 19 January 2005 and the case was remitted back to the Commercial Court to take the suit’s chances of success into due consideration (Kass.-Nr. AA040107/U/cap), following a decision of the Supreme Court of 01 July 2004 (4P.129/2004). The defendants filed their answers, and subsequently the parties were summoned to settlement negotiations that took place on 11 January 2007. The parties were served with the opinion of the reporting judge on 05 October 2007. With order of 23 August 2008, the request for legal aid was again dismissed: The reporting judge (not Dr. Dieter BRÄNDLE) concluded that the invoked patents were not valid for lack of an inventive step. The plaintiff did not come up with any promising claim amendment that could have resulted in valid claims. Thus, the request for legal aid was dismissed and the Commercial Court fixed the procedural deposit to CHF 1.1m (HG020259); Dr. Dieter BRÄNDLE was acting as substitute chief justice (Ersatzoberrichter) / rapporteur (Instruktionrichter) in this matter at the Commercial Court Zurich. The Court of Cassation dismissed the plaintiff’s nullity appeal with decision of 03 March 2010 (Kass.-Nr. AA080152/U/mum). An appeal of the plaintiff against this decision was dismissed by the Supreme Court on 10 January 2011 (4A_189/2010). A subsequent request for review was dismissed by the Supreme Court on 21 March 2011, either (4F_4/2011). The plaintiff then did not provide the procedural deposit and the Commercial Court Zurich consequently did not consider the case. A court fee of CHF 250’000,– and compensation of the counterparties of (in total) CHF 600’000,– was imposed on the plaintiff. The plaintiff’s appeal against this decision was not considered by the Supreme Court (4A_377/2011; decision of 11 October 2011). Further requests for review were dismissed / written off by the Supreme Court (4F_11/2013 and 4F_12/2013; 4F_1/2014).

From the aforementioned decisions and the patents identified therein, it is evident that the plaintiff is Jean-Jacques WAGNER; the writ of 2002 was based on EP 660 960 B1 and CH 687 352 H1 (no pdf available). A partial surrender of the European patent was published on 31 July 2013 as CH/EP 0 660 960 H3. Initially granted and published as CH 687 352 A5 on 15 November 1996, two declarations of partial surrender of the national Swiss patent were published later on: CH 687 352 C1 (published 15 May 2001); CH 687 352 C9 (published 13 July 2001), a correction of the aformentioned C1 document; and CH 687 352 C3 (published on 31 July 2013). Note that the Swiss national patent has already lapsed on 06 September 2012 (see Swissreg) and the European patent lapsed on 06 September 2013 (see Swissreg). The patents pertain to a

Process and device for detecting, recording and selectively evaluating operational and/or drinving data of a vehicle.

In general terms, the plaintiff alleged that these patents were infringed by the method and system carried out / installed in Switzerland for collecting the heavy vehicle charges. The Federal Department of Finance published a press release already back in the year 2000 when this patent dispute came up for the first time. An annotated version of this press release with comments of Jean-Jacques WAGNER is also available online.

The decision of the Administrative Board of Judges

It is up to a plenum of the Administrative Board of Judges to decide on requests for recusal (Art. 4(3) PR-PatC). In view of the request for recusal, the Adminstrative Board of Judges was established in accordance with Art. 4 PR-PatC.

Art. 28 PatCA is not applicable in the present matter, since the request for recusal pertains to permanent judges. Instead, Art. 27 PatCA in conjunction with Art. 47 ff. CPC applies. Lead decisions of the Supreme Court with respect to the potential appearance of bias are inter alia 2C_219/2013 (r. 2.1), 4A_142/2013 (r. 2.1.2), 4F_11/2013 (r. 1) and BGE 139 III 120 (r. 3.2.1, S. 124).

The decision is clear-cut:

As set forth explicitly in Art. 47(2) lit. a CPC, involvement in a decision on legal aid is in itself no reason for recusal. No supporting indications of a potential appearance of bias could be identified, either: Inasmuch as the grounds for a potential appearance of bias pertain to the prior proceedings outlined above, the plaintiff should have relied on those grounds already in that case. The present proceedings are no (further) appeal stage for the prior case. Moreover, it is no ground for recusal that the plaintiff is not satisfied with the outcome of the earlier proceedings.

[…] führt er Rügen an, die er im Rechtsmittelverfahren hätte vorbringen müssen. Der Umstand, dass dem Kläger der Verlauf und das Ergebnis eines solchen Verfahrens nicht genehm ist, bildet für sich allein keinen Grund für den Ausstand einer Gerichtsperson, die in jenem Verfahren mitgewirkt hat.

Moreover, the subject-matter has obviously changed; this is also acknowledged by the plaintiff: The patents have been partially surrendered in the meantime, and the plaintiff pre-announced to come up with even further limitations.

Consequently, the Administrative Board of Judges dismissed the request for recusal of Dr. Dieter BRÄNDLE. The request for legal aid was also dismissed since the requests on the merits of the case seem devoid of any chances of success (Art. 117 lit. b CPC), with reference to the prior decision 4F_11/2013 and 4F_12/2013 (r. 5) of the Supreme Court. A decision on the costs will be taken together with the final decision on the merits.

Of course, this decision is appealable to the Supreme Court: Play it again, Sam?

Reported by Martin WILMING


Case No. S2013_009 ¦ Decision of 29 January 2014 ¦ “Ausstand wegen Vorbefassung”

(not identified) ./. (not identified)


  • Infringement / Recusal

Composition of the Administrative Board of Judges:

  • Frank SCHNYDER
  • Dr. Thomas LEGLER
  • Dr. Ralph SCHLOSSER
  • Lic. iur. Jakob ZELLWEGER (First Court Secretary)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant(s):

  • (not identified)

Full text of the decision right here:

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3 Replies to “Requests for legal aid and recusal of the President of the FPC dismissed”

  1. I just came across BGE 142 III 348. A ban had been noted in the Swiss patent register for the two patents in 2015 – but they had already lapsed in 2012/13, respectively. Apparently, the ban had been requested by the Swiss Confederation to collect the party compensation from earlier proceedings at the Commercial Court Zurich, ie CHF 360’000,–. In brief, the Supreme Court holds that there is no basis for a ban anymore when the patents have lapsed.

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