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
SUMMARY

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... (see full summary)

 
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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

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