OJ EPO SE 5/2015, p252 - Dieter BRÄNDLE

President, Swiss Federal Patent Court


Dear colleagues and friends,

Our case study today relates to an object you all know and love, an extractor hood – which makes things a little easier – and in any case Tobias Bremi will shortly be explaining how the device works.

You have received the case study documentation, with a table of contents on page 2, but without any page numbering. I can now let you know exactly where to find the individual documents.

1. Statement of claim pp. 256-274

2. Defence pp. 275-300

3. Patent in suit EP 1 234 567 pp. 301-310

4. Citation EP 1 134 501 pp. 311-325

5. Legal provisions pp. 327-338

Last but not least, the questions we want you to answer are on p. 326.

It's a very international case. The claimant, the patent proprietor, is based in Estonia. It holds a European patent, the patent in suit, which is validated in Switzerland both as a unitary patent and as a European patent. The defendant, the alleged infringer, is based in Switzerland and has the disputed extractor hoods produced in Russia. The hoods are then taken by lorry to Tallinn and by ship to Lübeck, and from there on to distributors in Germany, Switzerland and the Netherlands. This marketing is the subject of the claim before the European Patent Court, or rather its Regional Division in Stockholm. The defendant seeks dismissal of the claim and raises a counterclaim for revocation of the patent in suit.

The questions for you to answer as Regional Division judges are to be found on page 75.

The questions in (1) concern the court's jurisdiction to rule on infringement and validity in respect of (a) the Swiss part of the European patent and (b) the unitary patent.

Question 2 concerns the substantive assessment of infringement, while question 3 concerns validity issues.

The important thing is to answer the questions in full and in the given order; so you should deal with infringement before revocation, because infringement is the focus of the case study. Even if your group decides there is no infringement, it should still discuss validity. And in that context there is a supplementary question for you to answer: would that be necessary in practice, given that the claim would have to be dismissed anyway?

So now that you know your brief, here is Tobias Bremi to introduce the corpus delicti.