Facts
The A. GmbH (applicant, claimant, appellant) filed an application for provisional measures against the B. AG (respondent, defendant, appellee) with the Federal Patent Court on 26 June 2024. It sought a super-provisional order prohibiting the manufacture, distribution or placing on the market of medicinal products containing the active ingredient rivaroxaban, as well as the deletion of corresponding entries in the “pharmavista.ch” database. The respondent had already filed a protective brief with the Federal Patent Court on 20 June 2024 to defend itself against a possible application for provisional measures.
The Federal Patent Court dismissed the application by judgment of 10 July 2024 without providing the claimant with the protective brief for comment. It justified the dismissal on the grounds that the claimant had not sufficiently substantiated a patent infringement, taking into account the arguments set out in the protective brief. In addition, the court awarded the respondent party compensation of CHF 25,000 despite the fact that no such application had been made.
The claimant appealed to the Federal Supreme Court, alleging in particular a violation of the right to be heard and the arbitrary award of party compensation. It sought the setting aside of the judgment and the remittal of the matter to the Federal Patent Court for the right to be heard to be respected and for a new assessment to be made.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal against the interlocutory decision of the Federal Patent Court. It confirmed its consistent practice that interlocutory decisions on provisional measures are only appealable if they cause a non-remediable legal disadvantage (Art. 93 para. 1 lit. a FSCA). The mere loss of constitutional control is not sufficient for this purpose. However, the appellant was able to show that it faced a non-remediable disadvantage due to the refusal to hear its case, since the Federal Patent Court had definitively dismissed the application for provisional measures without a contradictory procedural stage.
The Federal Supreme Court then examined the violation of the right to be heard. It found that the Federal Patent Court should have conducted the proceedings for the ordering of provisional measures in two stages in the presence of a protective brief: in the first stage, the court decides on the super-provisional order taking the protective brief into account without serving it on the opposing party. In the second stage, however, a contradictory procedure with a hearing of the parties and respect for the right to reply is mandatory. This requirement was not met, as…