Facts
On November 29, 2017, B. GmbH (Plaintiff, Respondent) filed a patent infringement lawsuit against A. AG (Defendant, Appellant) at the Federal Patent Court. The Plaintiff alleges infringement of the Swiss parts of three European patents by the Defendant's disposable injection pens "C."
On January 13, 2020, another patent infringement lawsuit was filed against the Defendant at the Federal Patent Court (Case No. O2020_001). In this case, a third-party company alleges infringement of its patent by the same "C." injection pens of the Defendant. The Plaintiff in the second patent infringement case is represented by law firm D. AG and supported by a European patent attorney employed at this law firm.
On February 14, 2020, the Defendant requested that Judge Tobias Bremi recuse himself from the first patent infringement case O2017_022. The employer of Judge Bremi, law firm E. AG, is registered as the representative of patents of the Plaintiff in the second case O2020_001 with the Swiss Federal Institute of Intellectual Property.
Considerations
According to established case law, a lawyer acting as a judge is considered biased if there is an outstanding mandate with a party or if he has acted as a lawyer for a party in such a way that there is a kind of permanent relationship between them. This applies regardless of whether the mandate is related to the subject matter of the dispute to be judged or not.
Furthermore, the Federal Supreme Court has recognized that a lawyer acting as a judge or arbitrator appears biased not only if he represents or has recently represented one of the parties in another proceeding, but also if there is or has been such a representation relationship with the opposing party of one of the parties in the other proceeding.
However, in the case of purely administrative activities such as…