Facts
- Sel-Rex SA is the holder of Swiss Patent No. 326 573 for a "process for obtaining gold-silver alloy galvanic deposits". - Aimé Schmiedlin has put on the market a "Philico 201" plating bath that Sel-Rex SA considers an imitation of its patent. - Sel-Rex SA has brought an infringement action against Schmiedlin, who has filed a counterclaim for patent invalidity. - The Cantonal Court of Neuchâtel has limited the patent by combining the main claim and sub-claim 2, and found that the "Philico 201" bath constitutes an imitation of the patent as limited. - Schmiedlin has appealed this judgment to the Federal Tribunal.Considerations
1. On the validity of the limited patent: - The judge hearing a total invalidity action has the power to declare the partial invalidity of the patent ex officio and to draft the new claim, after first obtaining the opinion of the parties and the Federal Institute of Intellectual Property. - The modified claim, composed of elements from the original claim and sub-claims, must be considered as a whole and examined for its patentability. - The new claim does not contain any elements foreign to the original…