Facts
The appellant [X.] filed a patent law claim against the respondent [Y. AG] with the Cantonal Court of Graubünden. The Cantonal Court appointed patent attorney [Z.] as a court expert. It later emerged that [Z.] or his firm [A. AG] was involved in a patent matter of the appellant on behalf of a third company ([B. AG] ). The respondent then requested that [Z.] be removed from his function as a court expert and that his expert opinion be excluded from the proceedings. The Cantonal Court partially upheld the appeal, set aside the lower court's order and excluded [Z.] 's expert opinion as evidence. The appellant challenged this decision before the DFC.Considerations
The DFC held that according to case law, the guarantee of impartiality and independence of the judge also applies mutatis mutandis to court experts. Accordingly, court experts can be rejected if there are circumstances that are objectively capable of giving rise to an appearance of bias. In the present case, the DFC affirmed the appearance of bias of patent attorney [Z.] , as he was on the one hand involved in a patent matter of the appellant on behalf of a third company ([B. AG] ) and on the other hand had to represent the interests of the licensee…