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Intellectual Property, in particular Patent Litigation in Switzerland

Intellectual Property, in particular Patent Litigation in Switzerland. Dr. iur. Andri Hess. Historic Framework. Switzerland is a federation of 26 cantons

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Intellectual Property, in particular Patent Litigation in Switzerland

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  1. Intellectual Property, in particular Patent Litigation in Switzerland Dr. iur. Andri Hess

  2. Historic Framework • Switzerland is a federation of 26 cantons • competence to legislate in the field of substantive civil law (including IP) lies with federation, while competence to organize judiciary and establish procedural law lied with the cantons • federal law requires cantons to denominate 1 court for intellectual property matters and provides for the possibility to appeal cantonal judgments to the Federal Supreme Court • only two court levels: Federal Supreme Court Cantonal court in Geneva; CCP Geneva … Cantonal court in Zurich; CCP Zurich Cantonal court in Berne; CCP Berne

  3. Evident Shortcomings, Remedied • 26 different procedural laws • constitution amended in 2000; power to legislate in the field of civil procedure transferred to federal level; Federal Code of Civil Procedure enacted 1|1|2011 • many cantonal courts did not receive enough patent cases to build up experience • establishment of Federal Patent Court; Federal Patent Court became operative 1|1|2012

  4. Federal Patent Court – Jurisdiction • exclusive jurisdiction over all matters that involve questions of substantive patent law, in particular infringement and validity • concurrent jurisdiction with cantonal courts in all other civil actions associated with patents • first instance civil court, not criminal court and not court of appeals against decisions of the Swiss patent office • Federal Patent Court judgments can be appealed to the Federal Supreme Court • pro memoria: • Switzerland is a member of the European Patent Organisation | European Patent Convention … • … but not a member of the EU and the EEC • development in EU regarding a European patent with unitary effect and a unified patent court will not affect the Swiss system

  5. Federal Patent Court – Distinctive Features • Judges • 38 judges, the majority with a technical background • only 2 permanent judges, the others work in private practice or in the industry and are called only on case-by-case basis • strict conflict of interest management required • Deciding bodies • 3 to 7 judges, always including technically trained judges • no need for external experts because technical knowledge is available within the deciding body

  6. Federal Patent Court – Distinctive Features • Financing • not trough general state budget … • … but only through court fees and contributions from the Swiss patent office taken from the patent fees annually collected by the office • court fees: capped at CHF 150,000; e.g. CHF 20,000–66,000 for value in dispute of CHF 1 Mio • Languages • all 4 national languages (German, French, Italian, Rumantsch) may be used in parallel • in addition English if all parties agree • Court aims at duration of proceedings of 1 year; more realistic is 1½ years

  7. Thank you for your attention. Dr. Andri Hess andri.hess@homburger.ch T +41 43 222 10 00 Homburger AG Prime Tower Hardstrasse 201 | CH-8005 Zürich Postfach 314 | CH-8037 Zürich www.homburger.ch

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