Doomed to live forever?

Case No. 4A_106/2017 (Supreme Court) ¦ Decision of 04 July 2017 ¦ “Patentverletzung, unentgeltliche Rechtspflege”

The patents at stake have expired already back in 2012 and 2013, but this case does not yet rest in peace. The walking dead …

In my review of the FPC’s Annual Report 2016, I had already mentioned that there is apparently a submarine case pending:

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 …

Well, the case took yet another procedural twist (ie an interim excursion to the Supreme Court), with no apparent progress on the merits.

Murphy's Law
With kind permission of Periscope Film LLC under a CC BY-SA 3.0 license

The plaintiff had been granted legal aid for his infringement complaint; see the review of the matter on this Blog here, with further reference. One of the appointed representatives moved to another law firm later. This is not in itself a problem. But unfortunately he moved to the law firm who represented the defendant.

Whatever can go wrong, will go wrong.

The representative stepped back and a new representative needed to be appointed. The other already appointed representative indicated that he was still willing and able to further represent the plaintiff, together with a further attorney of the same firm. The FPC issued an order in this respect, and this could have been it. But the plaintiff would meanwhile have liked to be represented by a different attorney from yet another law firm – and lodged an appeal to the Supreme Court.

The Supreme Court’s ruling is clear cut. Legal aid does not generally provide for a free choice of the representative. No special circumstances had been brought forward that would render the appointed representatives unacceptable for the plaintiff, either.

I remain in eager expectation of the next read in this matter. Next, it will have to be established on a preliminary basis whether or not the claim is already time-barred.

Reported by Martin WILMING


Case No. 4A_106/2017 (Supreme Court) ¦ Decision of 04 July 2017 ¦ “Patentverletzung, unentgeltliche Rechtspflege”

n/a  ./.  Federal Patent Court

Composition of the Board of Judges:

    • Dr. Christina KISS
    • Dr. Kathrin KLETT
    • Dr. Martha NIQUILLE

Court Clerk:

    • Dr. Thomas WIDMER


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Well, yet another request for legal aid … – but, wait: Granted!

Case No. S2013_009 ¦ Decision of 18 March 2015 ¦ “Unentgeltliche Rechtspflege”

This is not a new case. A first decision had been issued already on 29 January 2014 in the same matter. At that time, a request for recusal of Dr. Dieter BRÄNDLE had been dismissed. Moreover, the request for legal aid had also been dismissed — but only inasmuch as it concerned the request for recusal. The plaintiff’s request for legal aid also covered potential infringement proceedings, and this is what the present decision is all about.

According to Art. 117 CPC, a person is entitled to legal aid if he does not have sufficient financial resources (lit. a); and if his case does not seem devoid of any chances of success (lit. b). The claimant receives state benefits; his indigence was thus acknowledged (Art. 117 lit. a CPC). But the chances of success remained to be evaluated (Art. 117 lit. b CPC). In this respect, it is not necessary that the chances of success are outstanding. A case is not deemed to be devoid of any chances of success even if the risk of loss is slightly higher than the profit prospects. However, the profit prospects must not be be substantially lower than the risk of loss. In simple terms, it is decisive whether a party having the necessary financial resources would reasonably decide to lodge the suit. This has to be assessed by the President acting as single judge (Art. 23(1) lit. c PatCA) in summary proceedings (Art. 119(3) CPC).

Evidently, the chances of success depend on (i) the validity of the patents in suit; and (ii) whether the attacked embodiments actually infringed said patents. This assessment requires technical exerptise, and the President thus consulted a technically trained judge (Art. 35 PatCA).

The patents in suit are discussed in more detail in an ealier post. It’s an eventful history of limitations; the latest (second) published limitations are CH 687 352 C3 and CH/EP 0 660 960 H3. Yet another series of (third) limitations is mentioned in the decision (allegedly filed on 1 October 2013), but cannot yet be tracked in Swissreg. Thus, both patents are to be assessed on the basis of the second limitation only. In general terms, the claimant alleged that these patents were infringed by a method and system carried out / installed in Switzerland for collecting the heavy vehicle charges.

As to the validity of the patents on the basis of the prior art that is readily apparent, the technically trained consulting judge concluded that: —

The President agreed with this opinion.

As to the allgedly infringing embodiments, the technically trained consulting judge held that: —

  • infringement of claims 1 of both CH 687 352 C3 and CH/EP 0 660 960 H3 is not duly substantiated;
  • infringement of claim 9 of CH 687 352 C3 is plausible;
  • infringement of claim 9 of CH/EP 0 660 960 H3 is plausible, but still subject to yet further amendments to this claim corresponding to the other indepent claims. Note that the reference to claim 9 most likely is a typographical error; the second independent claim of CH/EP 0 660 960 H3 is claim 12, not 9.

The President also agreed with this opinion, but the latter (potential) further amendment of CH/EP 0 660 960 H3 was not taken into consideration; the facts are to be considered as they are on the filing date of the request for legal aid (Supreme Court decisions 139 III 475, r 2.2 and 138 III 217, r 2.2.4 with further reference). Nevertheless, in view of at least one claim having been plausibly infringed, the case could not be held devoid of any chances of success.

The decision also expands on the implications of the fact that both patents in suit have already expired back in 2012 and 2013, respectively. Therefore, there is no injunctive relief at stake any more; the potential plaintiff might only invoke financial claims. In general terms, the claimant apparently mentioned Art. 41 ff, Art. 423 and Art. 62 ff CO. However, a claim under Art. 41 ff CO requires fault, and a claim under Art. 423 CO requires bad faith. Only a claim for restitution in view of an unjust enrichment (Art. 62 ff CO) neither requires fault or bad faith; see Mark SCHWEIZER, Zivilrechtliches Verschulden bei der Verletzung von Schutzrechten, sic! 2015, p 1ff. In this respect, it is to be noted that the second series of limitation of the patents in suit was inter alia based on features taken from the description of the patents. Fault or bad faith of the potential defendants is thus doubted in the decision; only the (usually lower) restitution under Art. 62 ff CO would thus remain as a basis of a financial claim.

In passing, the decision also notes that the defendants might refer to the defence of limitation, which is to be taken into consideration in the assessment of whether or not legal aid is to be granted; see Supreme Court decision 119 II 368, r 5a. But from the file as-is, no clear conclusions could be drawn in this respect.

Legal aid was thus granted, for the time being. However, it is noted in the decision that — depending on the reasons given in the suit to be filed — the legal aid might be again withdrawn later on.

Reported by Thorsten MÜLL and Martin WILMING


Case No. S2013_009 ¦ Decision of 18 March 2015 ¦ “Unentgeltliche Rechtspflege”

(not identified)
1. (not identified)
2. (not identified)


  • Infringement / Legal aid

Board of Judges:

  • Dr. Dieter BRÄNDLE (President; Single Judge)
  • Lic. iur. Susanne ANDERHALDEN (First Court Secretary)

Cosulting Judge:

  • Dr. Markus MÜLLER

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant 1:

Representative(s) of Defendant 2:

  • (not identified)


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Everybody can sue everybody for everything (or at least try to do so)

Case No. O2014_005 ¦ Decision of 05 March 2014 ¦ “Nichteintreten; fehlende Begründung”


An unfortunate plaintiff: Yet two further unsuccessful attempts to make a case pending, in addition to O2012_012. A first writ was held querulous and thus returned to sender. A second writ did not comply with minimal standards, was overly lengthy, side-tracked and invective against authorities. The plaintiff failed to improve this second writ, so the case was finally not considered. Again.


The present matter is a follow-up of O2012_012. At that time, the FPC did not consider the case in view of incomprehensibility of the claim (Art. 132(1) and (2) CPC; Art. 23(1) lit. a PatCA).

The plaintiff tried the case once again and filed a writ on August 22, 2013. But again, the writ was not in conformance with at least a minimum of formal requirements. The plaintiff did not take learnings from the prior case. Consequently, the President of the FPC returned the querulous writ to the plaintiff; Art. 132(3) CPC.

Next, the plaintiff filed yet another writ on November 4, 2013. At least some progress: The President set a deadline for correction / improvements to the writ (Art. 132(1) and (2) CPC), since the majority of the writ did not deal with any patent infringement at all. Moreover, it was invective against authorities.

Ihre vorliegende Eingabe von 97 Seiten befasst sich, wie Sie selbst ausführen, zu wohl 95% mit dem, was Sie als “ungebührliche Benachteiligung der Aargauer-Bestecher-Behörden” bezeichnen […]. Daneben figurieren weitere Themen (u.a. Tennis-Technik, Tennis-Trainings-tubel-Terror-Tyrannen, Drug-Drops mit Nikotin, Betreibungsamt, Psychiatrie, Untermieter, Anästhesie, Schwester), die mit der konkreten Patentverletzungsklage nichts zu tun haben. Ihre Klageschrift erweist sich deshalb als unzulässig weitschweifig. Zudem ist sie, was die wiederholten Verbalinjurien gegenüber Behörden und Behördenmitglieder angeht, offensichtlich ungebührlich.

Moreover, it was explicitly noted that the writ did not provide any reasons and arguments for the alleged infringement; the President explicitly referred to BGE 131 III 70 for guidance with respect to the proper wording of requests for injunctive relief. The plaintiff also desired legal aid according to Art. 117 ff CPC. The President recommended to use the form which is available online.

The plaintiff improved the writ in due time. However, the requests (recited in section 4 of the decision on p. 4 and 5) were formally defective for various reasons — if not tragicomic. On the merits, the plaintiff failed to provide any comprehensible discussion of claim features in relation to the alleged infringement(s), despite the President’s guidance in this respect. Even worse, the request did not identify any allegedly infringing embodiment of the defendant(s). Consequently, it was decided to not consider the case. The request for legal aid was accordingly dismissed as the case was devoid of any chances of success; Art. 117 lit. b CPC.

No(!) costs were charged on the plaintiff this time, but the FPC emphasized that it might simply archive further submissions of this kind, without comments.

By the way, just in case you are interested in the technical issues at stake: The plaintiff had invoked CH 698 211 B1 and EP 1 449 391 B1; see Swissreg and the EPO Register for further information.

Reported by Martin WILMING


Case No. O2014_005 ¦ Decision of 05 March 2014 ¦ “Nichteintreten; fehlende Begründung”

(not identified) ./. (not identified)


  • Infringement

Composition of the Board of Judges:

  • Dr. Dieter BRÄNDLE (President)
  • Lic. iur. Jakob ZELLWEGER (First Court Secretary)

Representative(s) of Plaintiff:

  • none

Representative(s) of Defendant(s):

  • none


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Lack of financial resources not established, request for legal aid dismissed

Case No. O2013_001 ¦ Decision of 22 April 2013 ¦ “Auszug aus der Verfügung, Abweisung des Gesuchs um unentgeltliche Rechtspflege wegen fehlender Mittellosigkeit und Verletzung der Mitwirkungspflicht”

This decision pertains to a request of one of the defendants for legal aid. In general, a person is entitled for legal aid under two preconditions (Art. 117 CPC):

  • he or she does not have sufficient financial resources; and
  • his or her case does not seem devoid of any chances of success.

With respect to the first criterion: A person is deemed fundless if he or she cannot pay the costs of court proceedings without budget cuts for basic needs. Financial convenants as well as income and assets are to be taken into account. The person requesting legal aid is obliged to thoroughly demonstrate his or her financial situation, supported at least by prima facie evidence. The marital assistance obligation must not be forgotten; the financial situation of the spouse thus has to be included in the assessment. The more complex the financial situation, the higher the duty to cooperate. If the requesting party refuses to provide the required information or prima facie evidence, he or she may be regarded as being solvent (cf. BGE 5A_36/2013, decision of 22 February 2013, r. 3.3, with further reference).

With respect to the second criterion: It is not necessary that the chances of success are outstanding. A case is not deemed to be devoid of any chances of success even if the risk of loss is slightly higher than the profit prospects. However, the profit prospects must not be be substantially lower than the risk of loss (cf. BGE 119 Ia 251BGE 129 I 129BGE 4a_189/2010, decision of 10 January 2011).

Defendant outlined his financial situation essentially as follows:

  • He has a regular income of CHF 29’000,– p.a., corresponding to a monthly net disbursement of CHF 2’364,20.
  • Monthly expenses for basic needs amount to CHF 2’829,95.
  • He has no assets.
  • Debt enforcements of CHF 15’245,45 are pending against him.
  • Certificates of unpaid debts amount to CHF 145’905,43.

The FPC requested the defendant to disclose revenue and expenses pertaining to the presumably infringing items. Defendant did not provide such details, but rather only declared that 70 items were produced in total. 30 items were sold in 2011; the remainder could not be sold anymore in view of a decision issued by the Commercial Court of St. Gall. In view of this insufficient information, the FPC held that the defendant did not sufficiently comply with his duty to cooperate.

In accordance with BGE 5A_36/2013 (see above), the FPC additionally took the regular income of the defendant’s spouse into account. This led to a significant exemption of at least CHF 2’000,– per month. In consideration of BGE 120 Ia 179, r. 3a, the FPC refrained from requesting further information about the financial obligations of the defendant’s spouse: The defendant was represented by a lawyer and a detailed form was used which indicates all required information (if this form does not open correctly in your browser, try to download first with right click → “save as” and then to open it locally).

As a sidenote, the FPC stressed that the defendant requesting legal aid is the sole director of the other defendant (which is a legal entity), according to the Commercial Register. De facto, the requesting defendant himself is thus responsible for the regular income being paid to him.

Consequently, the request for legal aid was dismissed since a lack of sufficient financial resources was not established. The chances of success on the merits could thus remain undecided.

This decision is already res judicata.

Reported by Martin WILMING


Case No. O2013_001 ¦ Decision of 22 April 2013 ¦ “Auszug aus der Verfügung, Abweisung des Gesuchs um unentgeltliche Rechtspflege wegen fehlender Mittellosigkeit und Verletzung der Mitwirkungspflicht”

(not identified) ./. (not identified)


  • Infringement

Board of Judges of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

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