Claim of a foreign company for injunction against patent infringement and damages against a company domiciled in Switzerland

Facts

X. A/S, a company headquartered in Copenhagen, is the owner of a patent registered in Switzerland for a pharmaceutical product. On September 1, 2003, it filed a claim with the Commercial Court of the Canton of Bern against Y. AG, a joint-stock company headquartered in Cham, for an injunction against patent infringement and for payment of damages.

The Commercial Court denied its jurisdiction and therefore did not enter a judgment on the claim in its decision of April 1, 2004. The plaintiff then filed a federal appeal.

Considerations

The Federal Supreme Court dismissed the appeal. It stated that whenever a party is domiciled abroad, an international relationship is always involved, regardless of whether it is the plaintiff or the defendant. Therefore, in the present case, the Lugano Convention was applicable.

According to the Lugano Convention, the courts of the Contracting State where the defendant is domiciled have jurisdiction. The special jurisdictions pursuant to Article 5 of the Convention, such as the place of the act or the place where the result occurred, only apply if the claim is filed in a state other than the defendant's state…