Swiss University Subject To FSIA’s “Commercial Activity” Exception Where It Consented, Outside The US, To The Delivery of a Cease-And-Deist Letter to a US Entity in Connection With Alleged Patent Infringement

The World in U.S. Courts: Winter 2018 - Foreign Sovereign Immunity Act (FSIA)

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Genetic Veterinary Sciences, Inc., d/b/a Paw Prints Genetics v. Laboklin GmbH & Co., KG, US District Court for the Eastern District of Virginia, October 16, 2017

The University of Bern, in Switzerland, and its licensee, Laboklin, a German company, assert rights to a US patent for genetic testing of dogs to determine the presence of a defect likely to lead to the development of a disease. They claim that the plaintiff GVS is infringing that patent, and GVS filed suit for a declaratory judgment that it is not.

Among other issues, the Court considered whether the university—an “agency or instrumentality” of Switzerland—was subject to suit in the US under the “commercial activity” exception to the FSIA. That exception applies where a governmental unit engages in “the type of actions by which a private party engages in trade … or commerce.” The Court found this requirement met by the university’s having obtained the patent and consenting to the delivery of cease-and-desist letters to GVS in the US in an effort to enforce it. The fact that the consent was provided outside the US was not relevant because the FSIA specifically applies to non-US conduct having a US effect (here, an effort to enforce the patent against a US entity).

[Editor’s Note: This summary also appears in the Personal Jurisdiction/Forum non Conveniens Section of this Report.]

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