Facts
The present case concerns a patent nullity action in which the ground of invalidity of impermissible extension of the subject matter of the patent under Art. 26 para. 1 no. 3bis PatG (Swiss Patent Act) was asserted. The Commercial Court concluded that the patent in its granted version had been impermissibly extended by the omission of certain features. The defendant then argued that such an impermissible extension must necessarily lead to the complete nullity of the patent and that a mere limitation of the patent by the court due to partial invalidity under Art. 27 para. 1 PatG was excluded.
However, the Federal Supreme Court rejected this argument of the defendant. It clarified that according to the systematic structure of the law and the wording of Art. 27 PatG, all grounds for invalidity under Art. 26 para. 1 PatG, including the ground of invalidity of impermissible extension of the subject matter of the patent, can result in a partial invalidity of the patent. Accordingly, the court has the possibility to limit the patent accordingly in the presence of such a ground for invalidity.
The Federal Supreme Court further stated that this interpretation is also in line with the legal situation in other harmonized patent law systems such as Germany and France, where all grounds for invalidity, including the impermissible extension of the subject matter of the patent, can be remedied by the measure of limitation of the patent.
Considerations
The Federal Supreme Court therefore concluded that the Commercial Court correctly applied the provisions of Art. 26 para. 1 no. 3bis and Art. 27 para. 1 PatG. No violation of federal law is apparent in this respect.
With regard to the…