A decision by the Swiss Federal Patent Court has held that a request for a preliminary injunction against a device for producing milk foam was not delayed, despite the fact that the plaintiff knew, for a length of time that normally would forfeit the right to an injunction, about the infringing machines of the defendant since the European patent of the plaintiff was under opposition.
The Court held that it was an act of due care of the plaintiff to wait for the opposition decision by the EPO. The EPO decision upholding the patent in amended form issued in May 2014, about one month before the request was filed with the Federal Patent Court, which was confirmed to be a regularly admissible delay.
It can be taken from this decision that the plaintiff may wait with his request under the special circumstances of the decision without forfeiting his right for an injunction. It remains to be seen if this can be taken as a basis for an absolute advice in view of the fact that the opposition procedure at the EPO in this case took only one and a half years which is very fast indeed.
It remains an open question whether the court would have taken the same position in view of an opposition procedure that lasted several years as it is often the case.
|Brendan B Bolli
||Rainer U Schalch|
E Blum & Co AG
CH-8044 Zurich, Switzerland
Tel: +41 43 222 56 00
Fax: +41 43 222 56 01