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FAQ Antitrust / Litigation |
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1) How do I invalidate a patent in Switzerland?
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A revocation action has to be filed before a Civil Court.
(Contrary to e.g. Germany there is no special
patent court/"Bundespatentgericht"). Each canton has a designated court
for patent cases. As the number of cases is rather low in most cantons,
it is highly recommendable to initiate action before a
"more experienced" court, if possible. Decisions of these
courts in first instance may be appealed before the Swiss Supreme Court.
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2) How can an alleged
infringer use the invalidity argument in an infringement action?
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First of all, validity and infringement are decided in
the same procedure and by the same court. In any infringement
action, there can be a counterclaim for invalidation, which "if successful"
can lead to the revocation of the patent, partly or entirely.
As an alternative the defendant may bring the invalidity argument just
as a defense "inter partes". In this case, the patent would
remain registered at the patent office but be considered as
unenforceable against the alleged infringer.
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3) Is there a discovery procedure (or a "saisie contre façon" of French style) in Switzerland?
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The law knows a variety of procedures to gather evidence in
infringement cases. However, in practice there is no saisie or
discovery procedure which would be of any substantial effect.
Of course, to define damages, defendant will be ordered to
provide documents and figures to the court for calculation purposes.
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4) Is there a preliminary
injunction procedure in patent infringement cases in Switzerland?
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Yes. The law provides injunctive relief on a preliminary
basis under specific circumstances (urgency is required; there
must be some sort of evidence for irreparable damage to the patent
owner; the patent owner must provide prima- facie-proof that
infringement takes place; the infringer could, of course,
in return provide proof or prima-facie-proof that the patent
is invalid to defend against an injunction.) There is case
law saying that patents which have been examined by the European
Patent Office have a high degree of presumption of validity,
particularly applicable, if defendant cannot show new evidence
(not considered by the European Patent Office).
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