SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Marion Bähler, Dario Glauser, Christian Hagen and Samuel Lieberherr, Walder Wyss Ltd
passive sales – ie, they prohibit the fulfilment of unsolicited customer orders. 6.4 Abuse of Dominant Position Dominant undertakings and undertakings with relative market power behave unlawfully if, by abusing their position in the market, they hinder other undertakings from starting or continuing to compete (eg, by pricing below cost) or disadvan - tage trading partners (eg, by imposing excessive prices or unfair trading terms). Undertakings are considered dominant in a specific market if they are able, as suppliers or consumers, to behave to an appreciable extent independently of the other participants (com - petitors, suppliers or consumers) in the market. A dominant position is generally presumed for a company with a market share of 50% or more. However, under certain circumstances, a lower market share of approximately 40% is sufficient to qualify as a dominant market position. An undertaking has relative market power if other undertakings are dependent on it for the supply of or the demand for goods or services in such a way that there are no adequate and reasonable opportunities for switching to other undertakings. The Swiss Cartel Act lists certain behaviours of dominant undertakings and undertakings with relative market power that are considered unlaw - ful (non-exclusive): • any refusal to deal (eg, refusal to supply or to purchase goods); • any discrimination between trading partners in relation to prices or other conditions of trade; • any imposition of unfair prices or other unfair conditions of trade;
• any undercutting of prices or other conditions directed against a specific competitor; • any limitation of production, supply or techni - cal development; • any conclusion of contracts on the condition that the other contracting party agrees to accept or deliver additional goods or ser - vices; and • restriction of the opportunity for buyers to purchase goods or services offered both in Switzerland and abroad at the market prices and conditions customary in the industry in the foreign country concerned. The abuse of a dominant market position by a dominant company (but not the abuse of relative market power) is subject to a fine of up to 10% of the turnover of such company in Switzerland in the preceding three financial years. An invention or process can be patented if it is: • new and does not form part of the state of the art – ie, all knowledge that has been made publicly available anywhere in the world prior to the patent application; • inventive, which means that it must not be obvious to a person skilled in the art; and • industrially applicable and practicable, with the possibility of replicating its implementa - tion. Neither the novelty nor the inventive aspect are examined prior to the grant of a Swiss patent but can be disputed by third parties in court pro - ceedings challenging the patent. 7. Intellectual Property 7.1 Patents Definition
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