Proceedings Before the Federal Court of Justice

1.Procedure in Respect of Appeals on Points of Law

100.—(1) An appeal on a point of law from decisions of the Chambers of Appeal of the Patent Court in respect of an appeal under Section 73 shall lie to the Federal Court of Justice if the Chamber of Appeal in its decision has given leave to appeal on the point of law.
(2) Appeal on a point of law shall be permitted if
1. an issue of law of basic importance is to be decided; or
2. the further development of the law or the assurance of uniform judicial practice requires a decision by the Federal Court of Justice.
(3) Leave to appeal on a point of law from the decisions of the Chambers of Appeal of the Patent Court shall not be required if one of the following procedural defects is present and denounced:
1. if the court which rendered the decision was not properly constituted;
2. if a judge having participated in rendering the decision was excluded by law from the exercise of judicial office or, because of the possibility of partiality, had been successfully challenged;
3. if a party to the proceedings was refused the opportunity to present comments;
4. if a party to the proceedings was not represented according to the previsions of the law, unless he expressly or tacitly agreed with the conduct of the proceedings;
5. if the decision was made on the basis of a hearing in which the provisions on the publicity of proceedings were violated; or
6. if the decision does not state the grounds therefor.

[Amended by Law of July 16, 1998]

  101.—(1) The right to appeal on a point of law shall belong to the parties to the proceedings on appeal.
(2) The only basis for an appeal on a point of law shall be the argument that the decision is founded on a breach of the law. Sections 550 and 551, items 1 to 3 and 5 to 7, of the Code of Civil Procedure shall apply mutatis mutandis.

  102.—(1) An appeal on a point of law shall be lodged in writing with the Federal Court of Justice within one month after service of the decision.
(2) In proceedings concerning appeals on points of law before the Federal Court of Justice, the provisions of Section 144 on the assessment of value in dispute shall apply mutatis mutandis.
(3) An appeal on a point of law shall state the grounds on which it is based. The period allowed for stating the grounds shall be one month; it shall commence with the filing of the appeal on a point of law and may, upon request, be extended by the presiding judge.
(4) The statement of the grounds for the appeal on a point of law must contain
1. a declaration as to the extent to which the decision is contested and if the modification or reversal thereof is requested;
2. designation of the violated rule of law;
3. where the basis for the appeal on a point of law is the argument that the law was violated in respect of procedure, a statement of the facts constituting the defect.
(5) The parties shall be represented before the Federal Court of Justice by an attorney-at-law admitted to practice before the Court as authorized representative. At the request of any party, the latter’s patent attorney shall be given leave to speak. Section 157(1) and (2) of the Code of Civil Procedure shall not apply in this event. Section 143(5) shall apply mutatis mutandis.

[Amended by Law of July 16, 1998]

  103. An appeal on a point of law shall have a staying effect. Section 75(2) shall apply mutatis mutandis.

  104. The Federal Court of Justice shall examine ex officio whether an appeal on a point of law is in itself admissible and whether it has been filed and the grounds therefor have been stated in the form provided by law and within the prescribed time limit. If any of these requirements is lacking, the appeal on a point of law shall be dismissed as inadmissible.

  105.—(1) Where more than one person is party to the proceedings in respect of an appeal on a point of law, the appeal and the statement of the grounds therefor shall be served on the other parties, with the request to file declarations, if any, in writing with the Federal Court of Justice within a given period after service. The date on which the appeal was files shall be communicated with the service of the appeal on a point of law. The appellant shall file the required number of certified copies together with the appeal or the statement of the grounds for the appeal.
(2) If the President of the Patent Office is not a party in an appeal on a point of law, Section 76 shall apply mutatis mutandis.

  106.—(1) In proceedings in respect of an appeal on a point of law, the provisions of the Code of Civil Procedure regarding exclusion and challenge of members of the Court, authorized representatives and legal assistants, ex-officio service of documents, summonses, sessions and time limits, and reinstatement, shall apply mutatis mutandis. In the case of reinstatement, Section 123(5) to (7) shall apply mutatis mutandis.
(2) For the publicity of proceedings, Section 69(1) shall apply mutatis mutandis.

[Amended by Law of July 16, 1998]

  107.—(1) An appeal on a point of law shall be the subject of a decision; such decision may be rendered without a hearing.
(2) The Federal Court of Justice shall be bound, when rendering its decision, by the facts established in the decision appealed from, except when admissible and substantiated grounds for an appeal on a point of law are put forward in relation to such facts.
(3) The decision must state the grounds on which it is based and shall be served ex officio on the parties.

  108.—(1) In the event of reversal of the decision appealed against, the case shall be referred back to the Patent Court for a further hearing and decision.
(2) The Patent Court shall be bound to base its decision on the legal opinion on which the reversal is based.

  109.—(1) Where more than one person is party to the proceedings relating to an appeal on a point of law, the Federal Court of Justice may, at its equitable discretion, decide that the costs necessary for the appropriate final disposal of the case shall be borne in whole or in part by one of the parties if and to the extent that this is equitable. If the appeal is rejected or dismissed as inadmissible, the costs arising from the appeal shall be awarded against the appellant. Costs arising from gross negligence by one of the parties shall be awarded against that party.
(2) Costs may only be awarded against the President of the Patent Office if he lodged the appeal on a point of law or made petitions in the proceedings.
(3) In other respects, the provisions of the Code of Civil Procedure relating to the procedure for the assessment of costs and execution of decisions regarding the assessment of costs shall apply mutatis mutandis.

2. Procedure on Appeal

  110.—(1) An appeal shall lie to the Federal Court of Justice from the judgments of the Nullity Chambers of the Patent Court (Section 84).
(2) The appeal shall be filed in writing with the Federal Court of Justice.
(3) The time limit for appeal shall be one month. It shall begin with service of the full text of the judgment, but at the latest on expiry of five months of delivery of the judgment.
(4) The appeal in writing shall contain
1. the identification of the judgment against which the appeal is directed;
2. a statement that the appeal is filed against that judgment.
(5) The appeal in writing shall be accompanied by an original or a certified copy of the contested judgment.
(6) Decisions of the Nullity Chambers shall be subject to appeal only together with their judgments (Section 84); Section 71(3) of the Code of Civil Procedure shall not apply.

[Amended by Law of July 16, 1998]

  111.—(1) The appellant shall state the grounds of appeal.
(2) Where not already contained in the written appeal, the grounds of appeal shall be filed in a written submission to the Federal Court of Justice. The time limit for submitting the grounds of appeal shall be one month; it shall begin with the filing of the appeal. The time limit may be extended by the presiding judge, on request, if it is his conviction that the extension will not delay the procedure or if the appellant can show significant grounds.
(3) The grounds of appeal shall contain
1. a statement of the extent to which the judgment is contested and the amendments to the judgment that are requested (motions of appeal);
2. the exact designation of the grounds of contestation to be individually presented (grounds of appeal) together with the new facts, evidence and objections to evidence which the party shall submit to justify the appeal.
(4) Parties shall be represented before the Federal Court of Justice by an attorney-at-law or a patent attorney holding their power of attorney. The representative shall be permitted to appear accompanied by a technical advisor.

[Amended by Law of July 16, 1998]

  112.—(1) The written appeal and the grounds of appeal shall be served upon the appellee. The date on which the appeal was filed shall be communicated with the service of the appeal. The appellant shall file the required number of certified copies together with the written appeal or the grounds of appeal.
(2) The Chamber or the presiding judge may impose upon the appellee a time limit for submitting his written counter motions and on the appellant for submitting his written observations on the counter motions.

[Amended by Law of July 16, 1998]

  113.—(1) The Federal Court of Justice shall be required to examine ex officio whether the appeal as such is admissible and whether it has been filed and grounds given in the statutory form and within the statutory time limit. In the event of failure to comply with any one of these requirements, the appeal shall be dismissed as inadmissble.
(2) A decision may be taken without oral hearing by means of an order.

[Amended by Law July 16, 1998]

  114. If the appeal is not dismissed as inadmissible by means of an order, the date for the oral hearing shall be determined and the parties advised thereof.

[Amended by Law of July 16, 1998]

  115.—(1) The Federal Court of Justice shall have discretion to take all measures necessary for the investigation of the case. It shall not be bound by the factual statements and offers of proof of the parties.
(2) Evidence may also be taken through the intermediary of the Patent Court.

  116.—(1) The judgment of the Federal Court of Justice shall be rendered on the basis of a hearing. Section 69(2) shall apply mutatis mutandis.
(2) The summons shall be served with at least two weeks’ notice.
(3) The hearing may be dispensed with if
1. the parties consent;
2. a party is to be declared to have forfeited the legal remedy; or
3. only the costs are to be decided.

  117.—(1) The introduction of new facts and evidence at a hearing shall be admissible only to the extent that it results from the factual statements of the appellee in the written declaration.
(2) The Federal Court of Justice may also consider facts and evidence which the parties are forbidden to invoke.
(3) Section 115 shall be applicable if any additional evidence is required to be taken.
(4) When the judgment is to be based upon factors which have not been discussed by the parties, they shall be given an opportunity to express their views thereon.

  118.—(1) Facts alleged by one party on which the other party has made no statement may be deemed to be proven.
(2) If none of the parties appears at the hearing, the judgment shall be based on the files.

  119.—(1) At the hearing, minutes shall be taken which shall record the general course of the proceedings.
(2) The minutes shall be signed by the presiding judge and the registrar of the Court.

  120.—(1) The judgment shall be pronounced at the hearing that concludes the proceedings or at a hearing whose date shall be fixed forthwith.
(2) If pronouncement of the grounds for the decision is deemed appropriate, it shall take the form of a reading of such grounds or an oral communication of the essential elements thereof.
(3) The judgment shall be served ex officio.

  121.—(1) The provisions of Section 144 concerning assessment of the value in dispute shall apply mutatis mutandis in proceedings before the Federal Court of Justice.
(2) A decision on the costs of proceedings shall be included in the judgment. The provisions of the Code of Civil Procedure concerning costs of procedure (Sections 91 to 101) shall apply mutatis mutandis unless equity should require a different decision; the provisions of the Code of Civil Procedure on the procedure for the assessment of costs (Sections 103 to 107) and execution of decisions regarding the assessment of costs (Sections 724 to 802) shall apply mutatis mutandis.

[Amended by Law of July 16,1998]

3. Special Procedure on Appeal

  122.—(1) An appeal from decisions of the Nullity Chambers of the Patent Court on the issue of provisional orders in proceedings relating to the grant of a compulsory license (Section 85) shall lie with the Federal Court of Justice. Section 110(6) shall apply mutatis mutandis.
(2) An appeal shall be lodged in writing with the Federal Court of Justice within one month after service of the decision.
(3) The time limit for appeal shall begin with service of the full text of the judgment, but at the latest on expiry of five months after it has been delivered.
(4) Sections 74(1), 84 and 110 to 121 shall apply mutatis mutandis with respect to the proceedings before the Federal Court of Justice.
 

[Amended by Law of July 16,1998]