Facts
Company W. GmbH, domiciled in Germany, is the holder of Swiss Patent No. 579'979 for a juice press. It has sued French company P. S.A., which markets wine presses that W. GmbH believes infringe its patent, before the Commercial Court of the Canton of Zurich. W. GmbH has concluded for the positive determination of the validity of its Swiss patent, the determination of past infringements and the prohibition of future infringements, the surrender of profits, and the publication of the judgment. The Commercial Court refused to enter into the matter, considering that W. GmbH did not have a legally relevant interest in the determination of the validity of its patent and that there were no indications of (imminent) infringement of the patent in the Canton of Zurich. W. GmbH unsuccessfully appealed this decision to the Federal Tribunal.Considerations
The Federal Tribunal considers that the request for positive determination of the validity of the patent must be submitted to the same forum as the infringement claim, i.e. the forum of the defendant's domicile or the place of protection in Switzerland (Art. 109(1) PILA), and not to the forum provided for patent nullity actions (Art. 109(3) PILA). Indeed, the request for positive determination aims to defend the rights of the patent holder against the infringer, just like the infringement…