Facts
Company A. is the owner of a Swiss patent for a process to manufacture the antibiotic doxycycline. Company B. produces doxycycline using its own process and markets it. On September 15, 1987, Company B. filed a partial nullity action against the patent of Company A. with the Commercial Court of the Canton of Zurich. It requested that the patent be declared null and void insofar as it claims the use of other precious metals than rhodium, of other tertiary phosphines than triphenylphosphine, and of tertiary arsines and stibines. The Commercial Court dismissed the action, as the plaintiff lacked an interest in the action.
Considerations
The Federal Supreme Court explains that the patent law nullity action is a negative declaratory action, for which the plaintiff's legitimate interest is a prerequisite. This interest must be proven by the plaintiff. The Federal Supreme Court has consistently affirmed the declaratory interest if the disputed patent fell within the plaintiff's industrial sector, was of importance for its business operations, the plaintiff dealt with the same articles as the patented ones, or the patent protection significantly impaired its sales.
In the present case, the Commercial Court has bindingly established that the plaintiff justified its interest in…