Protection of a patent in the context of provisional measures

Facts

The decision concerns a dispute between company C. AG, holder of a European patent (EP) 0000, and companies A. AG and B. AG, which market a product called "Z.". Company C. AG requested provisional measures to prevent the marketing of this product, which it considers to be contrary to its patent. The President of the Commercial Court of St-Gall granted these measures, but companies A. AG and B. AG filed a nullity appeal, which was rejected by the President of the Court of Revision of the canton of St-Gall.

Companies A. AG and B. AG then filed a public law appeal with the Federal Court, alleging a violation of Article 29, paragraph 2, of the Federal Constitution (CF) and Article 9 CF. They consider that the President of the Commercial Court did not examine the issue of patent infringement and that the evidence was assessed in an arbitrary manner.

Considerations

The Federal Court admitted the public law appeal. It considered that the President of the Commercial Court had made an error in relying on uncontested allegations of a party without calling on an independent judicial expert. The Federal Court also estimated that the expert opinions from the parties have no probative value, but constitute mere allegations.

The Federal Court recalled that, in the context of provisional measures, the defendant party only needs to make it plausible that the plaintiff's patent is not valid.…