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!

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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.

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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:

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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.

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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

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