Facts

Parties:

  • [A. GmbH] (appellant), represented by attorneys Dr. Kilian Schärli, Dr. Simon Holzer and attorney Louisa Galbraith,
  • [B. SA] (respondent), represented by attorney Jonathan Bernasconi and attorney Dr. Daniel Alder.

Subject: Patent infringement, appeal against the judgment of the Federal Patent Court of October 6, 2020 (O2019_004).

Facts:

[A. GmbH] holds an exclusive license to the Swiss part of the European patent xxx (disputed patent), which relates to the storage of and access to data in distributed and networked computer structures. [B. SA] distributes the application "[B.] App", with which users can share digital content, whereby "[B.] -Tokens" are based on the standard "Ethereum Request for Comments 20" ("ERC20").

[A. GmbH] filed a patent infringement lawsuit with the Federal Patent Court, alleging that the issuance of ERC20 tokens or transactions with such tokens on the Ethereum blockchain infringed the claims of the disputed patent. It sought information and accounting of transactions with tokens as well as financial damages. The Federal Patent Court dismissed the lawsuit, finding that the asserted patent claims were not infringed.

[A. GmbH] then filed an appeal with the Federal Supreme Court to set aside the judgment of the Federal Patent Court and to remand the case for fresh consideration.

Considerations

The appeal concerns a civil matter and is directed against a final decision of the Federal Patent Court. The appellant does not assert a substantive claim but seeks the setting aside of the judgment and the remand of the case to the lower court. The application for setting aside and remand is admissible.

In the lower court proceedings, the appellant relied on claim 1 and claim 30 of the disputed patent. Claim 1 relates to a data access and management system, while claim 30 describes a method for data access and data management. The dispute centered on whether the issuance of ERC20 tokens or transactions with such tokens on the Ethereum blockchain fulfills feature 9 of claim 1 or feature 7 of claim 30, particularly whether data is moved in the sense of these features.

The Federal Patent Court assumed that the described scenario could actually occur in the ongoing operation of the Ethereum blockchain and that it could be attributed to the respondent under patent law. However, the lower court concluded that this process does not fulfill feature 9 of claim 1 and feature 7 of claim 30, as no data is moved. The Federal Patent Court defined "moving data" as a process that necessarily comprises two sub-steps: deletion or invalidation on the one hand and copying on the other. These sub-steps must occur within the framework of the same operation. In the infringement scenario presented by the appellant, the data previously stored at node A is no longer accessible there (for node C) and is ultimately copied to node D. However, the trigger for copying the data from node C to node D is the failure of node A, which locally causes insufficient data redundancy. The failure of node A occurs for arbitrary…