Facts
Mägert Bautechnik AG is the owner of a Swiss patent for a process of installing tie-back holders for large-scale wall formwork. This process is particularly characterized by the following features:
- A U-shaped iron as an anchor element is driven into the fresh concrete or fastened between the reinforcement bars before concreting.
- A transverse bar is inserted through two opposing holes in the legs of the U-shaped iron, which can be freely displaced laterally.
- The transverse bar is aligned using a guide string and fixed in place by wedging.
Mägert Bautechnik AG noticed at the end of 1990 that Emil Sigg and the company System Albanese were selling a similar tie-back holder called "RISA", in which the transverse bar was secured by inserting a nail or pin. Thereupon, Mägert Bautechnik AG filed a lawsuit for patent infringement.
Considerations
The Federal Supreme Court notes that as a rule, the involvement of experts is indispensable for the assessment of technical issues in patent disputes, if the court is not itself composed of technical experts. This is because the scope of patent claims is determined by the objective, normative content from the perspective of the skilled person.
An infringement by imitation occurs when a process or product, although it does not realize all the features of the patented solution, deviates only in subordinate points and adopts the essential content of the inventive idea in a modified form. The breadth of protection…