Patents: Switzerland

Author:Mr Markus Wang and Jonas Bornhauser
Profession:Baer & Karrer
 
FREE EXCERPT

1 Patent Enforcement

1.1 Before what tribunals can a patent be enforced against an infringer? Is there a choice between tribunals and what would influence a claimant's choice?

In Switzerland, the Federal Patent Court has exclusive jurisdiction over those actions that require the application of substantive patent law, in particular, actions regarding the validity of patents, patent infringement actions and applications for preliminary measures.

Besides that, the Federal Patent Court Act (PCA) provides for concurrent jurisdiction of the Federal Patent Court and the cantonal courts for other patent-related disputes, such as disputes arising from patent licensing agreements.

In addition, willful patent infringement is a criminal offence under the Federal Act on Patents for Inventions, (PatA). In such cases, the patentee may initiate criminal proceedings against an infringer.

Finally, the patentee may request border control measures (see question 6.1).

1.2 Can the parties be required to undertake mediation before commencing court proceedings? Is mediation or arbitration a commonly used alternative to court proceedings?

No, the parties cannot be required to undertake mediation before commencing court proceedings. Further, mediation or arbitration are not a commonly used alternative to court proceedings, although patent infringement (and validity) matters are considered to be arbitrable in Switzerland.

1.3 Who is permitted to represent parties to a patent dispute in court?

Registered Swiss patent attorneys may represent their clients in proceedings concerning the validity of Swiss national patents or the Swiss part of a European Patent alone. In all other court proceedings, only Swiss attorneys are permitted to represent parties. Swiss patent attorneys are, however, given the opportunity to comment on the technical merits in all hearings before the Federal Patent Court.

1.4 What has to be done to commence proceedings, what court fees have to be paid and how long does it generally take for proceedings to reach trial from commencement?

Proceedings are started by the filing of a detailed written statement of claim (or a request for a PI) by the plaintiff. Upon the filing of the statement of claim, the proceedings are pending, subject to the payment of the advance. There are no other pre-trial steps required under Swiss law.

The Federal Patent Court will request the plaintiff to pay the advance within two weeks by a related order.

The amount of the...

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