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:

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):

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.

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).

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


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


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