Facts
S. AG (Plaintiff) is a company in the textile machinery industry and the owner of a European patent for a "Process and Apparatus for Embroidering on a Shuttle Embroidery Machine". L. AG (Defendant) is also active in the embroidery machine industry. The Plaintiff accuses the Defendant of operating its embroidery machines in a manner that infringes the Plaintiff's process patent. The Commercial Court dismissed the claim, as it did not find any patent infringement. The Federal Supreme Court confirms the decision of the Commercial Court.Considerations
The Federal Supreme Court explains that while the Swiss Patent Act does not recognize indirect patent infringement, it does provide for civil liability for participation in a patent infringement (Art. 66 let. d PatA). Accordingly, a person can be held liable who incites, participates in, facilitates or simplifies patent-infringing acts.
In the present case, the Commercial Court found that the Defendant's operating instructions do not contain any instructions for blocking the compensation disc and thus realizing the patent-infringing process. Furthermore, it could not be…