Facts
A. AG (plaintiff, appellant) applied to the Federal Patent Court to declare the supplementary protection certificate No. y "Tenofovir Disoproxil Fumarate + Emtricitabine" of B. Inc. (patent holder, defendant, respondent) invalid. The plaintiff argued that according to the case law of the Court of Justice of the European Union (CJEU), the certificate is invalid.
The Federal Patent Court dismissed the action, as the certificate had been validly granted under the Swiss "infringement theory". The Federal Supreme Court now had to decide whether the CJEU's case law on the "disclosure theory" should also be applied in Switzerland.
Considerations
The Federal Supreme Court held that a change in the case law of the Federal Supreme Court towards the CJEU's case law is justified. This is because the interpretation of Art. 140b PatG in Switzerland deviates conceptually from the interpretation of Art. 3 of the relevant EU Regulation by the CJEU. A parallel further development of the legal practice on supplementary protection certificates therefore no longer appears possible.
The Federal Supreme Court stated that if the basic patent only designates one of two active ingredients, a product according to the marketing authorization cannot be claimed as a supplementary protection certificate if it is composed of two active ingredients.…