Facts
This judgment deals with the question of whether the patent holder can be reinstated to the previous state if the delay is attributable to the fault of his representative.
Behaton Beton- und Hartbeton GmbH and co-participants (appellants) had filed a patent application with the Federal Institute for Intellectual Property. When the annual fee for the third patent year was not paid on time, the patent expired. The appellants then applied for reinstatement to the previous state pursuant to Art. 47 of the Patent Act (PatG).
The Federal Supreme Court had to decide whether the fault of the appellants' representative is to be attributed to the patent holder, and thus the requirements for reinstatement are not met.
Considerations
The Federal Supreme Court adheres to its previous case law, according to which the fault of the representative is equivalent to that of the represented party. This also applies to patent law, which is regulated under public law but concerns private rights.
The appellants argued that the analogous application of provisions of civil law, such as Art. 101 of the Swiss Code of Obligations (OR), to public law relations is inadmissible. However, the Federal Supreme Court rejected this. It explained that this is not about the application of civil law norms to a public law relationship, but about the transfer of the basic idea of Art. 101 OR to a case with predominantly civil law effects.
The objection that the liability for auxiliary persons under Art. 101 OR…