20. January 2014

BPatG: Injunction and reporting in the case of delay on the side of the defendant

WorldConnect AG applied, on 20 March 2013, for an order inter alia to prevent the use by J. Rusillon of mains plugs described in more detail in Switzerland and Liechtenstein as well as reporting and payment of a figure according to reporting. The plaintiff accused the defendant of marketing a mains plug for travelling via the internet, hereby infringing patent EP 1 393 417 B1 exclusively licensed to the plaintiff.

On 28 March 2014, after notification of the application the defendant inquired about the further proceeding, whereby it was pointed out to the defendant that there would be a summons for lodging a counterplea. The defendant was sent a summons notifying of the deadline of 23 April 2013 to lodge a counterplea, which summons was sent repeatedly but not collected by the defendant within the respective seven day period at disposal. Thus the period of grace passed without any action being taken on the side of the defendant.

The Federal Patent Court recalled that registered mail is by law considered as delivered on the last day of the seven day collection period, in the case that the receiver was in anticipation of delivery (Art. 138 III lit. a ZPO). This was on hand in the present case. Because the defendant had not allowed examination the Federal Patent Court pronounced the injunction applied for and committed the defendant to reporting.

(Decision in legal matter O2013_007, dated 14.08.2013)