Takeaways from the INGRES annual meeting

It is a good tradition that the President of the Swiss Patent Court takes the opportunity to directly address users of the court at the occasion of the annual INGRES conference, and to remind them (or inform for the first time) of certain procedural aspects of relevance for practitioners.

The new President Mark Schweizer did not break with this tradition:

1.   Workload

Mark Schweizer informed about the current workload at the court and presented the figures of the first six months of 2018. Nothing out of the ordinary, actually.

Ordinary
proceedings
received until
June 30
disposed of until
June 30
Infringement w/o counterclaim 5 6
Nullity w/o counterclaim 2 1
Infringement and nullity 1 2
Ownership 1
Claim 1
Miscellaneous 1 1
Total 9 12
Summary
proceedings
received until
June 30
disposed of until
June 30
injunctive relief / preservation 3 1
Description 1 1
Total 4 2

2.   Amendment of the PatCA

The amendements to the PatCA will come into effect as of August 1, 2018, with the most important aspect being that not only the President but also the second ordinary judge (currently Tobias Bremi) may preside over proceedings in the capacity of instructing judge.

See this Blog here for further information about the forthcoming changes.

3.   Anonymisation of decisions

Decisions in summary proceedings will not be anonymised anymore (decisions in main proceedings had not been anonymised anyway); see this Blog here.

No rule without exception: If you feel that special circumstances require your decision to be published only in anonymised form, a reasoned request should be filed.

4.   Case management

a)   Less Doodle

Figuring out a convenient date with Doodle apparently turned out to be more and more time consuming for the court (see this Blog here for further information).

Henceforth, parties will only provided once with a set of only three dates to choose from in a Doodle form (not five dates as under the previous regime), whenever possible in three different weeks and on different days of the week.

b)   Preparatory hearing

The parties are summoned to a preparatory hearing not only when both sides desire so, but even if only one side does. And the hearing will be held even if the other side does not appear.

Again, no rule without exception. But one should be prepared that there is no chance to hide from unpleasant provisional opinions or questions of the court; see this Blog here (item 2) for further information.

c)   Timeline of proceedings

If no settlement can be reached at the preparatory hearing, a timeline is established for the further course of the proceedings, to ease projectability for the parties and the court; see Art. 8 of the Guidelines on Proceedings.

The date of the main hearing will likely not be fixable at the preparatory hearing, since the full panel of judges is not yet established at that time. But still, a time frame for the hearing will be indicated at the preparatory hearing, with the exact date being fixed thereafter.

It remains to be seen how this works out in practice. Mark Schweizer made the reservation that changes to this procedure are not excluded, in view of the planning fallacy:

The planning fallacy is that you make a plan, which is usually a best-case scenario. Then you assume that the outcome will follow your plan, even when you should know better.

— Daniel Kahneman

d)   Single exchange of briefs in summary proceedings

The typical course of actions in summary proceedings is:

  • reqest for interim injunctive relief;
  • defendant’s answer;
  • no second exchange of briefs;
  • plaintiff’s limited reply to validity issues raised by defendant (if any);
  • expert opinion of the judge-rapporteur;
  • the parties comment on the expert opinion at the hearing (orally).

4.   Specific cases

The President briefly presented the following decisions:

  • O2017_025, discussed on this Blog here;
  • S2018_001, discussed on this Blog here.

Reported by Martin WILMING

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