Swiss Patent Jurisprudence 2012

• Author: Cyrill P. Rigamonti
• Position: Dr. iur. (Zurich), LL.M. (Georgetown), S.J.D. (Harvard), Professor of Law and Chair, Department of Economic Law, University of Bern, Switzerland
• Pages: 53-62

Swiss Patent Jurisprudence 2012

2013

53

4

Abstract: The new Swiss Federal Patent Court,

with nationwide first-instance jurisdiction over all civil

patent matters, has been operating since 1 January

2012. This article reviews and contextualizes the

most important patent cases published in 2012 by

the Swiss Federal Patent Court and the Swiss Federal

Supreme Court. It concludes that the revamped

Swiss patent litigation system has the potential of

turning Switzerland into a competitive venue for the

adjudication of patent matters in Europe.

Swiss Patent Jurisprudence 2012

by Cyrill P. Rigamonti*

Dr. iur. (Zurich), LL.M. (Georgetown), S.J.D. (Harvard), Professor of Law and Chair, Department of Economic Law,

University of Bern, Switzerland

© 2013 Cyrill P. Rigamonti

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Cyrill P. Rigamonti, Swiss Pat ent Jurisprudence 2012, 4 (2013) JIPITEC 53, para. 1.

Keywords: Intellectual Property, Patents, Litigation, Switzerland, Patent Court, Specialized Courts, Specialized

Judges, Technical Judges, Expert Opinions, Preliminary Injunctions, Provisional Measures, Civil

Procedure, Infringement, Novelty, Inventive Step, Non-obviousness, Requests for Relief, Pre-Trial

Taking of Evidence, Precise Description

A. Introduction

1

The year 2012 marked the beginning of a completely

new era in Swiss patent litigation. The newly created



with nationwide jurisdiction over all civil patent

matters, began operating on 1 January 2012, and

the procedural rules applicable to patent litigation

were also revamped as a result of the enactment of

the new Swiss Federal Code of Civil Procedure in

2011.1 The primary goal behind these institutional

and procedural changes was to professionalize the

adjudication of patent cases and to ensure quick and

cost-effective proceedings on the trial level, in part

to make Switzerland a more attractive venue for

international patent litigants and litigators.2

2 The concentration of patent cases in the hands of a

single court with nationwide jurisdiction was only

one element of the strategy adopted by the Swiss

legislature. An equally important element was the

substitution of court-appointed technical experts

with a large number of technically trained adjunct

judges,3 because the routine use of external experts

was a major source of delay and costs under the old

system.4 By contrast, relying on part-time technical

judges who are paid on a case-by-case basis not

only tends to reduce costs, but also shortens the

    

selection and instruction of a technical judge is an

internal matter and because there are virtually no



or formally suggest amendments to the subject

matter of the technical judge’s report or statement.5

Accordingly, the Swiss Federal Patent Court’s policy

is to always rely on technical judges rather than

court-appointed experts, unless extensive testing

    

peculiar that there is no technical judge on the court

with the appropriate expertise. So far, the Swiss

Federal Patent Court has not appointed external

experts and has relied exclusively on technical

judges.6

3

The importance of reports or statements by technical

judges cannot be underestimated.

7

While they are

meant to replace reports from court-appointed

experts, the subject matter of their reports or

statements is not limited to factual issues, but may

and typically does include legal conclusions and

determinations, precisely because their role is not

that of expert, but rather judge. Therefore, a party