Facts
This case involved a Swiss Patent No. 636 581 for a pantograph lift, held by Eride Rossato and his company OMER. SAFIA Garage- and Industrial Supplies AG distributed a lift of the type "IME-Autolift HEP 30", which according to Rossato and OMER infringed the patent. In the course of the proceedings, the plaintiffs waived claims 1 to 5, while the defendant acknowledged the legal validity of claims 6 and 7. The Commercial Court then declared claims 8, 9 and 11 of the patent null and void, but dismissed the nullity action regarding claim 10. At the same time, it prohibited SAFIA from selling, exhibiting, offering or placing on the market the "IME-Autolift HEP 30" lift in Switzerland and dismissed SAFIA's claim for damages. SAFIA and the intervenor appealed the judgment of the Commercial Court, which was dismissed by the Federal Supreme Court.Considerations
In its reasoning, the Federal Supreme Court stated the following
Pursuant to Art. 27 of the Patent Act, the patent must be appropriately limited by the judge if a ground for nullity only exists for part of the patented invention. In this case, the judge has to reword the parts of the claims that are excluded. The Commercial Court proceeded correctly in this case by postponing the rewording of the patent claims until the judgment became legally binding, in order to avoid unnecessary effort.
The appellants argued that the limited patent contradicts the principle of unity of the invention. However, the Federal Supreme Court rejected this, as the revocation of an independent patent claim leads to the…