Facts
The C. Inc., a US company, is the owner of the European Patent EP 1 and the Swiss Patent CH 2. The S. AG and the T. AG, two Swiss companies, have infringed these patents by manufacturing and distributing security systems and recognition labels based on radio frequency technology. The C. Inc. has sued the S. AG and the T. AG for surrender of the profits they have made through the patent infringement.
The Cantonal Court of the Canton of Zug has ordered the S. AG and the T. AG to surrender the profits, but has dismissed the claim of the C. Inc. for surrender of the profits of the T. AG totaling CHF 1,299,378.-. The C. Inc. has filed an appeal against this judgment and has requested the annulment of the judgment and the obligation of the T. AG to surrender the profits.
Considerations
The Federal Court has partially upheld the appeal and annulled the contested decision insofar as the claim of the C. Inc. against the T. AG totaling CHF 1,229,378.- plus interest was dismissed. The Court has established that the T. AG bears the burden of proof for the production costs it claims to deduct from the profits and that the conditions for estimating the costs are not met.
The Court has also established that the T. AG can deduct the costs incurred for the production of the patent-infringing products from the sales revenue, but only insofar as these costs were actually incurred for the production of the patent-infringing products. The T. AG must provide proof of the deductibility of the costs, otherwise it cannot deduct these costs from the profits.
The Court has finally…