Snatching the conduct of the case away from the court

Case No. O2012_039 ¦ Decision of 21 May 2013 ¦ “Auszug aus der Verfügung betr. Prozessleitung”


Art. 124(1) CPC:
The court is the director of the proceedings. The parties are not allowed to make submissions contrary to an order of the court.
(Non-official translation from German into English language)

A platitude, you think? Let’s have a look at this case:

The plaintiff filed an action for patent infringement on 31 July 2012, based on two European patents. The defendant filed his statement of defence on 02 November 2012, denying infringement of both patents. Moreover, both the defendant and a notified third party (cf. Art. 78 ff. CPC) also argued for nullity of one of the patents in suit by way of a plea in objection.

With order of 07 February 2013, the FPC required the plaintiff to file the reply. However, it was explicitly held that the reply had to be restricted to the alleged nullity, for the time being. The plaintiff provided an accordingly limited reply in due time. A preparatory hearing was scheduled for 24 May 2013.

Shortly before the preparatory hearing, the plaintiff filed yet another submission. First, the persons attending the preparatory hearing on behalf of the plaintiff were indicated. Next, the plaintiff briefly – but nevertheless on eight pages – replied on the non-infringement arguments brought forward by the defendant in his statement of defence. In addition, the plaintiff put a supportive private expert opinion on file. The plaintiff justified this submission essentially as follows:

In order to provide a sound basis for the settlement negotiations, the plaintiff feels that it is necessary already prior to the preparatory hearing to briefly apprise the court and the counterparty of the plaintiff’s arguments pertaining to the alleged non-infringement. The plaintiff will elaborate these arguments further when being given the formal opportunity to do so.

Between the lines, one can catch a glimpse of how this must have irked the court. For the preparatory hearing in accordance with Art. 8(4) lit. b of the Guidelines on Proceedings before the FPC, it was the intention of the court to have one reply of each party on file pertaining to the questions of infringement and nullity. This is why the plaintiff was required to restrict the reply to the alleged nullity, for the time being. If the plaintiff had provided his full reply already prior to the preparatory hearing, he would have had already two submissions on file pertaining to the allegend infringement. This would negatively affect the interests of the defendant. Moreover, the plaintiff would have no opportunity anymore to consider learnings from the preparatory hearing when his full reply was already on file.

The FPC decided to not take the latest submission of the plaintiff into account (except for the indication of the persons attending the preparatory hearing), and the defendant was not required to respond.

As a sidenote, the FPC held that parties may well request reconsideration if they deem an order inappropriate. However, it is not admissible to comply with an order in first place, and to later on undermine it with yet another submission.

Reported by Martin WILMING


Case No. O2012_039 ¦ Decision of 21 May 2013 ¦ “Auszug aus der Verfügung betr. Prozessleitung”

(not identified) ./. (not identified)


  • Patent infringement

Composition of the Board of the FPC:

  • (not identified)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

Download (PDF, 16KB)

Print Friendly, PDF & Email

One Reply to “Snatching the conduct of the case away from the court”

Leave a Reply

Your email address will not be published.