Claim for Injunction and Damages against the Federal Government due to Alleged Patent Infringement

Facts

The Swiss Confederation (Defendant, Appellant) was sued by X. GmbH (Plaintiff, Respondent) for an injunction and damages in the amount of over 62 million Swiss francs. The Plaintiff claimed that the operation of the LSVA (Heavy Vehicle Fee) recording system by the Federal Government infringed its patent rights.

The Federal Patent Court declared itself competent to decide on both the claim for injunction and the claim for damages. The Appellant disputed the material jurisdiction of the Federal Patent Court.

Considerations

The Federal Supreme Court concluded that the Federal Patent Court has jurisdiction over the claim for injunction, but not over the claim for damages.

The claim for damages is subject to the public liability law of the Federal Government, not private law. Since the operation of the LSVA recording system constitutes a sovereign task, the Appellant is not subject to the liability regime of private law, but to public law liability. Consequently, the Federal Patent Court is not competent to assess the claim for damages.

However, the Federal Patent Court is competent to assess the claim for injunction based on Art. 26 para. 1 lit. a PatGG. Even though the Federal Government acts in a…