Patents—Switzerland—Q&A guide
Patents—Switzerland—Q&A guide

The following IP practice note provides comprehensive and up to date legal information covering:

  • Patents—Switzerland—Q&A guide
  • 1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?
  • 2. What is the format of a patent infringement trial?
  • 3. What are the burdens of proof for establishing infringement, invalidity and unenforceability of a patent?
  • 4. Who may sue for patent infringement? Under what conditions can an accused infringer bring a lawsuit to obtain a judicial ruling or declaration on the accusation?
  • 5. To what extent can someone be liable for inducing or contributing to patent infringement? Can multiple parties be jointly liable for infringement if each practises only some of the elements of a patent claim, but together they practise all the elements?
  • 6. Can multiple parties be joined as defendants in the same lawsuit? If so, what are the requirements? Must all of the defendants be accused of infringing all of the same patents?
  • 7. To what extent can activities that take place outside the jurisdiction support a charge of patent infringement?
  • 8. To what extent can ‘equivalents’ of the claimed subject matter be shown to infringe?
  • 9. What mechanisms are available for obtaining evidence from an opponent, from third parties or from outside the country for proving infringement, damages or invalidity?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to patents in Switzerland published as part of the Lexology Getting the Deal Through series by Law Business Research (published: May 2020).

Authors: CMS von Erlach Poncet AG—Dr Dirk Spacek

1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?

From the outset, patentees have to instigate civil proceedings to enforce patent rights. The Swiss Federal Patent Court (FPC) has exclusive jurisdiction over patent infringement and invalidity actions of patentees (article 26(1)(a) of the Patent Court Act (PatCA)). The panel of judges at the FPC is composed of at least one judge with a legal background and one judge with a technical background. The judges of the FPC must have proven knowledge of patent law to be eligible. Appeals against decisions of the FPC are heard by the Swiss Federal Supreme Court (SFSC).

According to article 81 of the Swiss Federal Act on Patents for Inventions (PatA), wilful patent infringement is a criminal offence. Therefore, patentees can also instigate criminal proceedings against an infringer. Criminal proceedings may be instigated by the state (ex officio), if the infringer acts in a commercial manner.

In addition, patentees may request border control measures from the custom authorities, such as seizure and destructions of infringing

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