Annual Report 2019

Federal Patent Court

 

Executive Summary
The number of incoming cases fell compared to the previous year to 21 (29 in the previous year). The number of ordinary proceedings decreased (13, 22 in the previous year),
while the number of summary proceedings remained virtually unchanged (8, 7 in the previous year).
During the reporting year, the Federal Patent Court handled 30 ordinary proceedings, of which seven were settled
and 15 terminated by judgment. Eight proceedings were
declared groundless. A total of ten summary proceedings
were disposed of during the reporting year, of which one
was settled, one was declared groundless and eight were
terminated by judgment. The number of cases pending by
the end of the year was practically halved due to the high
number of cases settled and the simultaneous decline in
incoming cases (21, 39 in the previous year).
Income rose to an all-time high of CHF 1,051,936
(CHF 965,741 in the previous year). This improved the
Federal Patent Court’s coverage ratio from 54.4% to an alltime high of 60% despite expenses remaining largely the
same (CHF 1,753,918, CHF 1,776,342 in the previous
year).

2

 Members of the court

6

Caseload

7

Non-permanent judges

7

Languages

7

Administrative office

8

Premises

8

Finances

8

Investigation of the Parliamentary Control
of the Administration into the distribution
of work in the federal courts
9
Cooperation
Statistics

9
10

3

 Annual Report of the Federal Patent Court 2019

St. Gallen, 1 February 2020

Ms President
Distinguished members of the National Council and the Council of States
In keeping with article 3 paragraph 3 of the Patent Court Act, we hereby submit the present Annual Report covering our activities in 2019.
Please accept, Ms President, distinguished members of the National Council and the
Council of States, the assurances of our highest consideration.
On behalf of the Federal Patent Court
President:

Mark Schweizer

First Court Clerk:

Susanne Anderhalden

5

 Members of the court
Administrative Commission
President:
Second permanent judge:
Vice-President:

Mark Schweizer
Tobias Bremi
Frank Schnyder

Non-permanent judges with technical training
Natalia Clerc
Roland Dux
Giovanni Gervasio
Barbara Herren
Michael Kaufmann
Alfred Koepf
Christoph Müller
Markus A. Müller
Lorenzo Parrini
Peter Rigling
André Roland
Werner A. Roshardt
Regula Rüedi
Philipp Rüfenacht
Christophe Saam
Frank Schager
Frank Schnyder
Andreas Schöllhorn Savary
Martin Sperrle
Hannes Spillmann
Kurt Stocker
Michael Störzbach
Kurt Sutter
Daniel Vogel
Prisca von Ballmoos
Diego Vergani
André Werner
Marco Zardi

Non-permanent judges with legal training
Daniel M. Alder
Lara Dorigo
Philippe Ducor
Christoph Gasser
Andri Hess
Christian Hilti
Simon Holzer
Stefan Kohler
Daniel Kraus
Thomas Legler
Rudolf Rentsch
Ralph Schlosser
Christoph Willi

6

 groundless. One judgment was appealed
to the Federal Supreme Court and the
appeal is still pending.

Caseload
By the end of 2019, 20 ordinary and no
summary proceedings were pending at
the Federal Patent Court (37 and 2 in the
previous year).
The number of incoming cases decreased compared to the previous year
to 21 (29 in the previous year). The
number of ordinary proceedings declined
(13, 22 in the previous year), while the
number of summary proceedings remained virtually unchanged (8, 7 in the
previous year). A clear reason for the
decline cannot be identified. Due to the
economic importance of summary proceedings (generally involving preliminary
measures to prohibit the sale of a given
product, mostly pharmaceuticals), these
proceedings are handled with practically
the same level of intensity as ordinary
proceedings, which results in a correspondingly high processing workload for
the court.

Non-permanent judges
The system of non-permanent judges
with legal and technical training still
proves to be extremely effective. The
possibility of composing panels of qualified legal and technical experts from a
given field ensures that these panels are
highly competent and able to dispose of
technically complex cases in an appropriate amount of time and at reasonable
costs.
The President recused himself on numerous cases that were disposed of in
the reporting year by judgment. Therefore, the compensation to the nonpermanent judges who took over the
management of the proceedings in these
cases was around CHF 140,000 above
the long-term average. The extraordinarily high number of cases terminated (40),
of which 23 were disposed of by judgment, shows that the Court can cope
well with the recusals. A steep decline in
cases where the President has to recuse
himself is anticipated for 2020.

During the reporting year, the Federal
Patent Court disposed of 30 ordinary
proceedings (23 in the previous year), of
which 7 were settled (5 in the previous
year), 8 were declared groundless (13 in
the previous year) and 15 were terminated by judgment (5 in the previous
year). 7 out of 15 judgments were appealed to the Federal Supreme Court
(for 3 judgments that were made in December, the period for appeal is still ongoing). One appeal was rejected, one
was declared groundless by the Federal
Supreme Court, and five are still pending. Of the two appeals against judgments in 2018 that the Federal Supreme
Court decided on in the reporting year,
one was approved and one was rejected.

Languages
During the reporting year, eleven of the
ordinary proceedings submitted to the
Federal Patent Court were handled in
German, two cases in French. In the
summary proceedings, German was
used in six cases, French in two cases.
There were no cases in Italian; however,

A total of ten summary proceedings were
disposed of during the reporting year (6
in the previous year), of which one was
settled (2 in the previous year), eight
were terminated by judgment (4 in the
previous year) and one was declared

7

 in one case the defendant used the Italian language. In four ordinary proceedings and three summary proceedings, litigants mutually agreed to invoke the legal right conferred upon them by the
Federal Patent Court Act to use English
in submissions and hearings instead of
an official language of Switzerland. Parties clearly show great interest in pleading their cases in English. This can be
explained by the fact that English is the
working language used not just by many
foreign companies involved in court cases here but also by the R&D and patent
divisions of a number of Swiss companies, and that frequently the main prior
art documents are also in English.

When the Federal Patent Court needs to
conduct proceedings away from St.
Gallen, the cantons where the proceedings are to be held provide the hearing
rooms. An instructional hearing and a
main hearing were held in the courtroom
of the Hôtel de Ville in Neuchâtel during
the reporting year. This was greatly appreciated by the parties, who were
based in the French-speaking part of
Switzerland. Further instructional hearings also took place in Zurich.

Finances
The profit and loss statement of the
Federal Patent Court shows stable expenditure of CHF 1,753,918 (previous
year CHF 1,776,342) and an increased
income (before payments from the Swiss
Federal Institute of Intellectual Property)
of
CHF 1,051,936
(previous
year
CHF 965,741). The increased income is
attributed to the numerous terminations
of proceedings that led to increased income from court fees.

Administrative office
The staff continues to comprise two office employees (equivalent to a combined work week percentage of 130%)
and two clerks (equivalent to a combined
work week percentage of 100%). The
second court clerk, whose main role is
as court clerk in Division II of the Federal
Administrative Court, is brought in on a
case-by-case basis when required.

The remaining amount to be covered by
the IPI according to Article 4 PatCA has
been reduced to CHF 701,982, and is
therefore around 13% lower than in the
previous year (CHF 810,600). The Federal Patent Court's coverage ratio
reached a record high of 60% (54.4% in
the previous year). Since it is not to be
expected that the number of terminations
in 2020 will be as high as in the reporting
year, a decrease in income from court
fees and a correspondingly lower coverage ratio can be expected for 2020.

Premises
The office space of the Federal Patent
Court, like the hearing rooms that the
Federal Administrative Court shares with
the Federal Patent Court, serve their intended purpose; there is no need to
change the current arrangements.

8

 Investigation of the Parliamentary Control of the Administration into the distribution of work in the federal
courts
On 17 June 2019, the President met Ms
Marion Baud-Lavigne from the Parliamentary Control of the Administration to
discuss the distribution of work in the
Federal Patent Court. Ms Baud-Lavigne
was provided with copies of the resources used. Specifically, these include
a table that shows the professional qualifications of the non-permanent judges
with technical training, as well as a regularly updated table that shows how often
each judge has already been acting as
judge.

Cooperation
The Federal Patent Court greatly appreciates the support that it received in supervisory meetings with the Federal Supreme Court in Lucerne on 1 April and in
St. Gallen on 31 October. As in previous
years, cooperation with the Federal Administrative Court went very smoothly at
all levels.

9

 Statistics
Number and type of case

Case settled by
compromise

Case declared
inadmissible

Case declared
groundless *

4
1
1
1
0
0
7

0
0
0
0
0
0
0

3
3
2
0
0
0
8

2
0
0
0
0
0
2

7
0
0
0
0
1
8

9
0
0
0
0
1
10

0
0
0
0
0
0
0

7
0
0
0
0
1
8

1
0
0
0
0
0
1

0
0
0
0
0
0
0

1
0
0
0
0
0
1

01.01.2019

31.12.2019

5
4
4
1
0
1
15

Cases still
pending on

10
4
1
3
0
2
20

Cases settled
12
8
7
2
0
1
30

2019
7
2
0
3
0
1
13

Cases
submitted to
FPC in

15
10
8
2
0
2
37

Cases still
pending before

Regular proceedings
Infringement of patent without counter-claim of nullity of patent
Nullity of patent without counter-claim of infringement of patent
Infringement and nullity of patent
Right to a patent
Claim
Other
Total

Outcome of proceedings
Case terminated
by judgment

Action taken

Summary proceedings
Injunction/safeguarding of interests
Description
Seizure
Evidence secured
Description and evidence secured
Other
Total

Swiss patents (incl. supplementary
protection certificates)
European patents (incl. supplementary
protection certificates)
Others (applications, other national patents)
Total*
* in some cases, European and Swiss patents in same protective letter

2020

Relevant up to

Period of
protection
expired

2019

Received in

2018

Protective briefs

Transfer from

* including due to withdrawal of action or
acknowledgement of action

5

3

7

1

30

50

59

21

0
34

1
54

0
65

1
23

10

 Cases by language of proceedings in 2019
60

Cases by language of proceedings in

2019

Regular proceedings

Summary proceedings

Protective briefs

Total

German*; 51

English
4
36%
0
0%
0 #DIV/0!
4
31%

50

30

20

German*
French
Italian

German*; 11

10

German*; 6
French; 2

Protective briefs

Regular proceedings

40

Summary proceedings

11 85%
2 15%
0 0%
13 100%

German*
French
Italian

6
2
0
8

51
3
0
54

11
2
0
French; 2
13

6
2
0
8

English
3
50%
0
0%
0 #####
3
38%

75%
25%
0%
100%

French; 3

0
Regular proceedings

Summary proceedings

Protective briefs

*including 23 cases where English was used during proceedings (4 ordinary proceeding, 3 summary proceedings, 16 protective briefs)

Case declared
inadmissible

Case declared
groundless

Approach used to settle cases in ... (regular proceedings)

Case settled by
compromise

Case declared groundless; 8; 27%

Case terminated
by judgment

Approach used to settle cases in 2019 (regular proceedings)

15
50%

7
23%

0
0%

8
27%

Case terminated by judgment;…

Case settled by compromise; 7; 23%

Case declared groundless; 1; 10%

80%

10%

1
10%

Case declared
groundless

8
0%

Case declared
inadmissible

Case settled by
compromise

Approach used to settle cases in 2019 (summary proceedings)

Case
terminated by
judgment

Total

0

1

30

100%

Case settled by compromise; 1; 10%

Case terminated by judgment; 8;
80%

Total

11

10

100%

51 94%
3 6%
0 0%
54 100%

English
16 31%
0
0%
0 #####
16 30%

68
7
0
75

91%
9%
0%
100%

En
23
0
0
23

 IPC-H Electronics; 1; 8%
IPC-G Physics; 1; 8%

IPC-A Human necessities (incl. Pharmaceuticals)
IPC-B Performing operations; transporting
IPC-F Mechanical engineering; lighting; heating; 1; 8%
IPC-C Chemistry; metallurgy
IPC-D Textiles; paper
Fixed constructions
(incl. construction,
earthdrilling,
drilling, mining)
IPC-E FixedIPC-E
constructions
(incl. construction,
earth
mining); 1; 8%
IPC-F Mechanical engineering;
lighting; heating
IPC-G Physics
IPC-H Electronics
Total of cases*
IPC-C Chemistry; metallurgy; 2; 15%

Summary
proceedings

Regular
proceedings

Regular proceedings

5
2
2
0
1
1
1
1
13

5
0
1
1
0
1
0
0
8

Total

Protective briefs

Cases by technical field

IPC-A Human necessities (incl. Pharmaceuticals); 5; 38%

43
4
3
0
2
0
2
0
54

IPC = International Patent Classification

53
6
6
1
3
2
3
1

IPC-B Performing operations; transporting; 2; 15%

Total

13

100%

Total

8

100%

Total

54

100%

Summary proceedings
IPC-F Mechanical engineering; lighting;
heating; 1; 13%

IPC-A Human necessities (incl. Pharmaceuticals); 5; 62%

IPC-D Textiles; paper; 1; 13%

IPC-C Chemistry; metallurgy; 1; 12%

Protective briefs
IPC-E Fixed constructions (incl. construction, earth drilling, mining); 2; 4%
IPC-G Physics; 2; 4%
IPC-C Chemistry; metallurgy; 3; 5%

IPC-B Performing operations; transporting; 4; 7%

IPC-A Human necessities (incl. Pharmaceuticals); 43; 80%

50
45

43

40
35
30
25
20
15
10
5

5

4

5
2

2
0

3
1

0

1

1

0

2
0

1

1

0

1

2
0

1

0

0

0
IPC-A Human necessities
(incl. Pharmaceuticals)

IPC-B Performing operations; IPC-C Chemistry; metallurgy
transporting

IPC-D Textiles; paper

Regular proceedings

IPC-E Fixed constructions
IPC-F Mechanical
(incl. construction, earth engineering; lighting; heating
drilling, mining)

Summary proceedings

IPC = International Patent Classification

12

Protective briefs

IPC-G Physics

IPC-H Electronics

 Regular
proceedings

Summary
proceedings

Protective briefs

Total

Cases by intellectual property rights

4

1

3

8

11

6

50

1
13

2
8

1
54

Regular proceedings

Swiss patents (incl. supplementary
protection certificates)

Other (applications/other national
European patents (incl. supplementary
patents); 1; 6%

protection certificates)
Other (applications/other national patents)

Total of cases*

67

Swiss patents (incl. supplementary
protection certificates); 4; 25%

4

European patents (incl. supplementary
protection certificates); 11; 69%

Total*

13

100%

Total*

8

100%

Total*

54

100%

Summary proceedings
Swiss patents (incl. supplementary
protection certificates); 1; 11%

Other (applications/other national
patents); 2; 22%

European patents (incl. supplementary
protection certificates); 6; 67%

Protective briefs
Swiss patents (incl. supplementary
protection certificates); 3; 5%
Other (applications/other national
patents); 1; 2%

European patents (incl. supplementary
protection certificates); 50; 93%

60

50
50

40

30

20

11
10
6
4

3
1

1

2

1

0
Swiss patents (incl. supplementary
protection certificates)

European patents (incl. supplementary
protection certificates)
Regular proceedings

Summary proceedings

* some cases related to both a Swiss and European and/or other patent

13

Protective briefs

Other (applications/other national patents)

 Duration of cases

4 to 6 months

7 to 12 months

1 to 2 years

over 2 years

Total cases still
pending at the end of
10

7
2
0
1
30

0
0
1
0
0
2

1
0
0
0
1
4

1
0
1
0
0
5

2
1
1
0
0
6

0
0
0
0
1
3

4
1
3
0
2
20

9
0
0
0
0
1
10

0
0
0
0
0
0
0

0
0
0
0
0
0
0

0
0
0
0
0
0
0

0
0
0
0
0
0
0

0
0
0
0
0
0
0

0
0
0
0
0
0
0

2

4

2

3

12

0

2

0

3

3

8

0
0
0
0
1

0
0
0
0
4

2
1
0
1
8

1
0
0
0
6

4
1
0
0
11

5
0
0
0
0
0
5

3
0
0
0
0
1
4

1
0
0
0
0
0
1

0
0
0
0
0
0
0

0
0
0
0
0
0
0

2019

1
Infringement of patent without counter-claim of nullity of patent
Nullity of patent without counter-claim of infringement of patent
Infringement and nullity of patent
Right to a patent
Claim
Other
Total
Summary proceedings
Injunction/safeguarding of interests
Description
Seizure
Evidence secured
Description and evidence secured
Other
Total

Average duration of cases
Cases terminated

Cases still pending

Average duration (days)

Average duration (days)

Regular proceedings
Infringement of patent without counter-claim of nullity of patent

436

402

Nullity of patent without counter-claim of infringement of patent
Infringement and nullity of patent
Right to a patent
Claim
Other
Average

639
689
596
0
363
557

390
684
293
0
604
418

105
0
0
0
0
157
110

0
0
0
0
0
0
0

Summary proceedings
Injunction/safeguarding of interests
Description
Seizure
Evidence secured
Description and evidence secured
Other
Average

14

2019

1 to 3 months

2

over 2 years

2

1 to 2 years

3

7 to 12 months

2

4 to 6 months

1

1 to 3 months

Regular proceedings

Cases still pending
Total cases settled in

Cases terminated

 Approach used to terminate case (panel of judges/decision)

2

0

12

3

5

8

0
0
1
0
1
4

0
0
0
0
0
0

8
7
2
0
1
30

2
1
1
0
0
7

5
3
1
0
0
14

7
4
2
0
0
21

Injunction/safeguarding of interests
Description
Seizure
Evidence secured
Description and evidence secured
Other
Total

6
0
0
0
0
1
7

3
0
0
0
0
0
3

0
0
0
0
0
0
0

0
0
0
0
0
0
0

9
0
0
0
0
1
10

Overall total

22

14

4

0

40

Total hearings

Single judge

Main hearings

3
4
4
0
0
0
11

Instruction hearings

Total

7
4
3
1
0
0
15

Regular proceedings

Five-member panel

Infringement of patent without counter-claim of nullity of patent
Nullity of patent without counter-claim of infringement of patent
Infringement and nullity of patent
Right to a patent
Claim
Other
Total

Three-member panel

Seven-member panel

Hearings in relation to
preliminary measures

liquidations seulemen

Summary proceedings

15

4
0
0
0
0
0
4
7

4

4
0
0
0
0
0
4
14

25

 issued by

Federal Patent Court
P. O. Box
CH-9023 St. Gallen
Phone
058 465 21 10
info@bpatger.ch
www.bpatger.ch

1 February 2020

16