Facts
L. GmbH, the holder of a European patent, requested the Commercial Court of the Canton of Aargau to authorize an inspection of the waste incineration plant N. as part of a future evidence procedure. The request was rejected by the court, which considered that L. GmbH had not demonstrated a worthy interest in this inspection.
L. GmbH appealed this decision to the Federal Court, arguing that the cantonal court had violated Articles 158 and 77 of the Patent Act. L. GmbH argued that the inspection was necessary to establish whether M. AG had committed an indirect infringement of its patent by supplying components to the waste incineration plant N.
Considerations
The Federal Court examined the admissibility of the appeal and considered that the cantonal court's decision was a final decision within the meaning of Article 90 of the Federal Court Act (FSCA). The Federal Court then examined the merits of the case and considered that L. GmbH had the right to request future evidence under Article 158 of the Patent Act.
The Federal Court also examined the notion of a worthy interest in a request for future evidence and considered that L. GmbH had to demonstrate a concrete and…