The Federal Patent Court’s Annual Report 2018

The official Annual Report 2018 of the FPC has been published earlier today, together with a press release. It comes along with an official Executive Summary as follows:

Compared to the previous year, the total number of incoming cases decreased slightly to 29 (34 in the previous year). The number of ordinary proceedings declined (22, 26 in the previous year), while the number of summary proceedings remained virtually unchanged (7, 8 in the previous year).

During the reporting year the Federal Patent Court handled 23 ordinary proceedings, of which 11 were disposed of by settlement and 5 by judgment. A total of 6 summary proceedings were disposed of during the reporting year, 4 of which were decided by judgment and 2 were declared groundless. The number of cases pending at the end of the year remained unchanged (39, 39 in the previous year).

Income from court fees rose to an all-time high of CHF 965,741 (672,804 in the previous year). This improved the Federal Patent Court’s coverage ratio from 44.3% to 54.4% despite higher expenses (CHF 1,776,342, CHF 1,519,014 in the previous year). This rise in expenses can be attributed to a CHF 140,000 increase in remuneration for the non-permanent judges who took charge of more proceedings because the President [Note: Mark Schweizer, formerly with the law firm MLL] had recused himself on numerous occasions as well as to expenditure of CHF 65,000 for legal aid in one case.

The FPC’s ‘even more executive’ summary on Twitter:

Now, do we need to worry about the slight decline of incoming cases? I don’t think so. Let’s put in in perspective, taking all reporting years into account:

dyerware.com



The number of incoming main proceedings is still the second highest of all times; it equals with the 22 cases received in 2013. The slight decrease vis-à-vis the all-time high of 2017 is still within normal fluctuation, in my perception.

The overall number of concluded cases increased; a slight decline of concluded summary proceedings (6 in 2018 vs. 9 in 2017) is more than outweighed by an increase of concluded main proceedings (23 in 2018 vs. 15 in 2017):

dyerware.com



Indeed, the FPC has been pretty productive in 2018. It was only in 2013 that the FPC had ever disposed of more cases.

The backlog of cases had reached an all-time high in 2017, and the same number of cases is also pending at the end of 2018. But, frankly, I don’t feel that 39 pending cases is sth to worry about.

dyerware.com



But what’s up with the settlements by compromise?

The settlement rate dropped again to 48% in main proceedings (which is pretty much the same as the all-time low of 2016 with 47%) and 0% in summary proceedings (no, that’s not a typo; it’s literally zero. Not a single summary proceeding has been concluded by settlement).

dyerware.com



Why is that? If the parties to main proceedings prefered a judgment because they felt they would get a more favorable outcome on appeal, this expection was most likely in vain: 80% of the judgments in main proceedings had been appealed, but not a single appeal was successful until 1 February 2019 when the Annual Report had been finalized (the appeal in O2016_009 was still pending then, and it is still pending today).

The report itself does not expand much on the settlement rate; it only mentions:

Over the first seven years of activity, the ratio of cases settled stands at around 70%.

Well, that’s true, but the settlement rate is apparently going down. Good for me: I do need some published judgments for this Blog! 😉 In any event, a settlement rate of 70% is anything but alarming; it is still outstanding.

If you wonder about the case where legal aid has been granted, I am pretty sure that it is the main proceeding in the aftermath of S2013_009; see also this Blog here.

Reported by Martin WILMING

PRESS RELEASE

Fullscreen view (new tab)

ANNUAL REPORT 2018

Fullscreen view (new tab)

The Annual Report is also available in German, French and Italian.

BE ON THE KNOW

Enter your name and email address below to get notified of new posts by email.

Annual Report 2017 reveals all-time high of incoming cases

The official Annual Report 2017 of the FPC has been published earlier today, together with a press release. It comes along with an official Executive Summary as follows:

Compared to the previous year, the total number of incoming cases increased to 34 (27 in the previous year). The increase was attributed to ordinary proceedings (26, 18 in the previous year), while the number of summary proceedings remained practically the same (8, 9 in the previous year).

During the reporting year the Federal Patent Court handled 15 ordinary proceedings, of which 10 were disposed of by compromise and 5 by judgment. A total of 9 summary proceedings were disposed of during the reporting year, 4 of which were settled by compromise and 5 were decided by judgment.

The current president, Dieter Brändle, resigned at the end of the reporting year due to his age. Mark Schweizer, former non permanent judge with legal training, was elected as his successor. Four of the non-permanent judges with technical training resigned at the end of the term of office, the others were reelected. Moreover five new non-permanent judges with technical training were elected. All of the non-permanent judges with legal training except for the new president were reelected, and three new judges with legal training were elected. All newly elected judges take office on 1 January 2018.

It is always good to put isolated annual numbers into perspective. So let’s have a look at the bigger picture, taking the whole time of operation of the FPC since 2012 into consideration. The overall number of incoming cases per year increased once again, after two years of declining numbers before. The number of incoming cases has reached an all-time high in 2017, which is indicative of the high reputation that the FPC has gained meanwhile both on a national and international level.

Noteworthy, the increase can be solely attributed to main proceedings.

dyerware.com


 

The overall number of concluded cases remained stable; a slight decline of concluded main proceedings is outweighed by more concluded summary proceedings.

dyerware.com


 

The backlog of cases reached an all-time high in 2017. Still, I do not feel that this is something to worry about.

dyerware.com


 

The number of settlements by compromise has recovered again to a share of 67% in main proceedings (2016: 47%) and 44% in summary proceedings (2016: 29%).

dyerware.com


 

On a sidenote, it is clear from the small print that a submarine case has finally been buried in 2017, after a pendency of record-breaking 1’335 days at a cantonal court and 1’885 days at the FPC, i.e. 3’220 days or a little less than 9 years in total.

Two main proceedings are already pending since more than two years; it is pretty evident that these cases are O2015_008 and O2015_009.

And how is all this perceived by the users? Well, you never really know until you ask …

So the FPC did ask! And the feedback is positive:

The information provided by the Court on the courses of proceedings and jurisdiction was deemed to be very good. Likewise more than 80 % of respondents are satisfied or very satisfied with the courtesy and cooperation of the Federal Patent Court dealing with inquiries, and with the quality, reliability and promptness of information. […]

78% of the respondents evaluate the clarity and traceability of the reasons given for the decisions with 3 or higher on a scale from 1 to 5.

The FPC also asked specific questions relating to procedural issues, e.g. about timing:

Practically all respondents deemed durations of proceedings and time-limits to be appropriate. In case of summary proceedings about one fourth of the respondents would like faster proceedings.

There is obviously no need to take any urgent action here. On the contrary, there are two other topics that might actually lead to a change of practice:

Two thirds of the respondents would like an instructional hearing after the first correspondence even if this is requested by one party only.

A few respondents would welcome it if after failed settlement proceedings binding terms for the further procedural steps were fixed by agreement with the parties.

The Federal Court takes suggestions by the users seriously and examines if instructional hearings can be held on a regular basis even if requested by one party only and how the proposal to fix binding terms for the further procedural steps at an early stage can be realized.

The question relating to instructional hearings had already been included in the questionnaire. Moreover, the FPC now apparently examines how to hold instructional hearings on a regular basis after the first exchange of briefs even if requested by one party only. A contrario, this suggests that it may well be done (or has already been done?) exceptionally in any event.

As to the second topic, it is clear from the German version of the Annual Report (page 8) that terms is to be understood as dates (‘Termine’).

Reported by Martin WILMING

PRESS RELEASE

Fullscreen view (new tab)

ANNUAL REPORT 2017

Fullscreen view (new tab)

BE ON THE KNOW

Enter your name and email address below to get notified of new posts by email.

The Annual report of the Federal Patent Court: 2016 in a nutshell

The official Annual Report 2016 of the FPC has been published earlier this week. It comes along with an official Executive Summary as follows (emphasis added):

Compared to the previous year, the total number of incoming cases once again increased to 27 (23 in the previous year). The increase was attributed not so much to ordinary proceedings (18 compared to 19 in the previous year) as to summary proceedings (9 compared to 4 in the previous year).

During the reporting year, the Federal Patent Court handled 17 ordinary proceedings, of which eight were settled, seven were terminated by judgment and two were declared groundless. A total of seven summary proceedings were terminated during the reporting year, two of which were settled by compromise and five were terminated by judgment.

The Federal Patent Court continued its policy of seeking the rapid and cost-effective handling of proceedings. Thanks to the technical expertise of its judges, the Federal Patent Court was once again able to handle cases in the reporting year without having to rely on the time-consuming and costly calling in of external experts.

The FPC is operative since five years now. Thus, let’s have a look at the bigger picture, taking the whole five years into consideration. The overall number of incoming cases per year increased again, after three years of declining numbers. If one takes the last three years as a reference, the total number of incoming cases appears to even out at about 25 main proceedings per year — which is good!

dyerware.com


 

The number of concluded cases per year is declining over the last three reporting years. This holds true for both main proceedings and summary proceedings. Reasons for this are most likely complex; I cannot spot any indication of a loss of productivity at the FPC. It’s quite the contrary, in my perception.

dyerware.com


 

The backlog of cases remained pretty constant compared to last year, and there is nothing to be worried about over the full five years term:

dyerware.com


 

The big sensation is the extraordinarily low share of cases settled by compromise — only 47% of the concluded main proceedings and 29% of the concluded summary proceedings were settled by compromise. Frankly speaking, I find even a share of 47% quite impressive. And it is very close to the FPC’s estimation back in 2012 of a share of about 50%.  The FPC now notes the following:

The comparably low number of cases settled and correspondingly higher number of judgments resulted from the fact that the parties to the disputes in question wanted the matter to be terminated by means of a court ruling. Five of the judgments were appealed before the Federal Supreme Court (in 3 of these cases, the FSC upheld the FPC ruling, in 1 case it overturned the FPC ruling and 1 case is still pending). Despite the lower ratio of cases settled in the reporting year, this ratio stands at around 75% for the first five years of activity.

dyerware.com


 

And beyond the mere numbers?

Language always is a tricky issue in Switzerland. The FPC has to use one of the official languages of Switzerland (German, French and Italian). By far the most proceedings were handled by the FPC in German: Only a single case was dealt with in French in main proceedings in the reporting year, none in Italian. All summary proceedings were dealt with in German. Even though the court has to use one of the official languages of Switzerland, the parties may mutually agree to use the English language. This happened in 6 of the 18 incoming main proceedings of the reporting year:

Clearly, the parties show a great interest to plead their cases in English. This can be explained by the fact that English is the working language used not just by foreign companies involved in court cases here but also by the R&D and patent divisions of a number of Swiss companies.

The FPC attempted to promote legislative amendments to also use the English language in such cases. But this attempt failed, at least for the time being:

Even in cases where English is used by the parties, the Federal Patent Court itself is legally obliged to carry out its activities in an official language of Switzerland. As could be expected, this turned out to be impractical. The Federal Patent Court attempted to introduce legislative amendments to remedy this situation but had to desist in the face of limited prospects of success. The issue is still a pressing one.

By the way: There is one main proceeding pending (infringement and nullity) at the end of the reporting year which is just outstanding. It had been pending at a cantonal court for already 1’335 days, and is still pending at the FPC since 810 days. This makes a total of 2’145 days, ie almost six years. I guess it’s this semi-submarine here. I trust the decision will be a nice read — if it ever emerges …

Reported by Martin WILMING

FULLTEXT

Download (PDF, 505KB)


BE ON THE KNOW

You liked this? And you would like to be notified of new posts? Here you go.

Annual report 2015

The FPC’s Annual Report 2015 has been published earlier today; see below. I could not spot anything out of the ordinary at first glance, in addition to the sneak preview.

International litigants will appreciate that the FPC strives to further improve the overall setup for simultaneous tranlation at hearings:

A currently unresolved issue is the lack of interpreter booths at the Federal Administrative Court. As a result, temporary ad hoc solutions need to be found each time interpreters are needed to facilitate communication between international litigants. This happens more regularly at the Federal Patent Court than at the Federal Administrative Court. The two institutions are currently working on ways to address this issue.

Reported by Martin WILMING

Download (PDF, 357KB)

Would you like to be notified of new posts? Here you go.

Annual Report 2014 published

The FPC has published the 2014 Annual Report earlier this week; it is available in English, German, French and Italian language. The English version is incorporated hereinbelow. All the statistics are pretty much self-explanatory, and I will thus only highlight some of my personal take-away messages.

Settlement by compromise

The FPC had aimed at a high rate of settlements by compromise from the very beginning. A ratio of 50% was estimated already back in May 2012 (see Neue Zürcher Zeitung). However, an extremely high 89% share of the main proceedings had been settled by compromise in 2013. Maybe surprised by its own success, the FPC guessed that this was an exception and reiterated the estimation of 50% in the 2013 Annual Report:

This 89% ratio of cases settled by compromise will probably remain an exception. […] The Federal Patent Court expects […] a settlement by compromise in around 50% of the cases, […]. […], it is unlikely that an average ratio exceeding the 50% threshold can be achieved over time.

In 2014, the 50% estimate is again exceeded by far. An impressive 85% share of the main proceedings has been settled by compromise last year. Even in summary proceedings, the share of settlements by compromise is remarkably high (50%).

dyerware.com

Fig. 1: Share of cases settled by compromise in 2014 [%]

Despite the still limited data basis after only 3 years of operation, outstandingly high ratios of settlement by compromise tend to be the rule rather than the exception. Consequently, the FPC has re-set the estimate:

The Federal Patent Court therefore strives to reach mutually acceptable compromises in its handling of cases. […] The Federal Patent Court initially expected that this approach would result in a settlement by compromise in around 50% of the cases, […]. […], the Federal Patent Court now feels that it is possible to maintain the ratio more or less at current levels. This is fairly remarkable considering that similar patent courts in Germany, France, the Netherlands and the United Kingdom rarely reach such an outcome. Over time, such outcomes achieved by the Federal Patent Court will have a positive impact on the number of incoming cases.

It will indeed be interesting to see how the share of settlements by compromise — and the impact on the number of incoming case numbers — develops over time.

Case numbers in main proceedings

Let’s have a look at the regular proceedings only. How are the case numbers developing?

EASY CHART BUILDER SHORTCODE ERROR

  • Check for misspelled parameters (case matters)
  • Check for new lines (all must reside on one long line)
  • Error near [0], [01,in,out,Dec]

  • For assistance, please visit http://www.dyerware.com/main/products/easy-chart-builder

    Fig. 2: Case numbers 2012-2014 (regular proceedings)

    The number of incoming cases is represented by the red bar in Fig. 2 above. Note that 32 of the 43 incoming cases in 2012 had been transferred from cantonal courts. Therefore, the very high figure in 2012 was clearly an exception. But 2013 and 2014 are quite comparable: In 2013, only one of the 23 incoming cases had been transferred from a cantonal court, and apparently none in 2014. A significant decrease of incoming cases by more than 30% is to be noted (2013: 22; 2014: 17), but this may well be within a regular fluctuation range.

    On the other hand, the FPC is no longer in its start-up phase. As a consequence, it could settle more cases (regular proceedings) in 2014 than in the years before; see the green bar in Fig. 2 above.

    Strong emphasis on chemistry

    About 50% of all cases received by the FPC require assistance from chemists, and some of these cases are highly complex. On the other hand, only 7 of the 25 non-permanent judges with a technical training are chemists. Therefore, the FPC currently seeks three additional non-permanent judges specialised in chemistry.

    Reported by Martin WILMING

    — ANNUAL REPORT 2014 —

    Download (PDF, 295KB)