Case No. 4A_77/2020 (Supreme Court) | Decision of 17 June 2020 » on appeal against O2019_008 (FPC) | Decision of 17 December 2019 » | ‘Flow sensor II’
This is the second time that the Supreme Court had to deal with the ‘flow sensor’ litigation between Hamilton Medical and imtmedical. We had reported already on this Blog about the main hearing of 29 October 2018, the first decision of the FPC (case O2016_009 of 18 December 2018) and the first Supreme Court decision (case 4A_70/2019 of 6 August 2019). The latter decision has apparently been acknowledged «Impact Case of the Year 2020 – Switzerland» at the MIP Awards in March 2020. The Supreme Court had remitted the case to the FPC, to assess one specific issue; see 4A_70/2019, ¶2.5.4:
Inofficially translated:
[The FPC] did not examine whether there was a causal connection between the improper novum [document E10] in the rejoinder and the verbal limitation of the patent claim, i.e. whether the limitation was specifically occasioned by [E10]. The case must thus be remitted to [the FPC] for assessment of this issue.
Well, in the second FPC decision it had been held that the limitation was indeed specifically occasioned by E10; see this Blog here. imtmedical appealed again, but the Supreme Court has dismissed the appeal with decision of 17 June 2020.
Procedurally, the Supreme Court endorses the FPC’s approach to what is an _immediate_ reaction: As long as there is still a deadline pending for a submission on the merits, no separate reaction on the novum is necessary beforehand; see r. 4.2.3. (2/2)https://t.co/DEuyGszMXD
— Martin WILMING (@FPCreview) July 21, 2020
A procedural issue is probably the most interesting aspect of the Supreme Court decision: As long as there is still a deadline pending for a party to make a submission on the merits, no separate (immediate) submission on a novum is necessary in the meantime.
On the merits, the Supreme Court strictly focused to the only issue that had still been at stake — and did not actually address imtmedical’s arguments on various other issues (which the Supreme Court evidently did not appreciate).
Now that the partial decision on infringement and injunctive relief is final, it remains to be seen how this litigation continues when imtmedical has provided the information and accounting, as ordered.
Reported by Martin WILMING
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BIBLIOGRAPHY
Case No. 4A_77/2020 (Supreme Court) | Decision of 17 June 2020 » on appeal against O2019_008 (FPC) | Decision of 17 December 2019 » | ‘Flow sensor II’
Hamilton Medical AG | (Respondent / Plaintiff) |
./. | |
imtmedical AG | (Appellant / Defendant) |
Panel of Judges:
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- Dr. Christina KISS
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Dr. Martha NIQUILLE
- Marie-Chantal MAY-CANNELLAS
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Court Clerk:
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- Nicolas CURCHOD
Representative(s) of Appellant / Defendant:
Representative(s) of Respondent / Plaintiff:
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- Dr. Christoph GASSER (Bianchi Schwald)
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2nd SUPREME COURT DECISION
on appeal against O2019_008 | Decision of 17 December 2019: | |
4A_77/2020 | 17 June 2019 |
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2nd FPC DECISION
on remittal of 4A_70/2019 | Decision of 6 August 2019: | |
O2019_008 | 17 December 2019 |
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1st SUPREME COURT DECISION
on appeal against O2016_009 | Decision of 18 December 2018: | |
4A_70/2019 | 6 August 2019 |
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1st FPC DECISION
O2016_009 | 18 December 2018 |
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CH 701 755 B1
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