SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
1. Life Sciences and Pharma/ Biopharma Patent Litigation 1.1 Claimants/Plaintiffs to an Action Patent infringements typically grant the patent owner the right to initiate legal proceedings. Where a patent has multiple owners, unless an additional agreement has been reached among the co-owners, they are obliged to exercise their rights collectively. This affects, for instance, the issuance of licences, as the consent of each co-owner is required. Regarding patent infringe - ments, however, the Swiss Federal Patent Act (PA) enables each owner to initiate legal pro - ceedings autonomously (Article 33 et seq PA). If the licensor grants an exclusive licence to the licensee, solely the licensee is entitled to exploit the patent within the designated territory for the duration of the agreement. Consequently, pat - ent infringement actions can only be filed by the licensee, unless expressly excluded in the licence agreement (Article 75 PA). Litigation does not necessarily require the patent owner’s par - ticipation and a licence registration in the patent registry is not required for this purpose. Although non-exclusive licensees have no standing to sue on their own, in accordance with the PA, licensees may participate in litigation initiated by patent right holders to receive compensation for their own damages. This rule is of a dispositive nature, meaning that the parties may contractu - ally agree otherwise. The above legislation was introduced in 2008. Hence, the right of licensees to sue infringers requires particular attention in older licence agreements. The objective of a nullity action is the judicial declaration that the patent has never existed. It is accessible to any person and/or entity which demonstrates an interest in a nullity action (Arti - cle 28 PA). There are no specific requirements
regarding proof of interest. In most cases, it is sufficient if the parties compete for the same goods, and such goods fall within the patent’s scope of protection. 1.2 Defendants/Other Parties to an Action Numerous activities, including the import, tem - porary storage, transit, and resale of goods abroad, may constitute infringements. In the pharmaceutical sector, suppliers, manufacturers and regional distributors are typical defendants. Specific actions performed by medical doctors, pharmacists or similar professionals in connec - tion with medicinal products are deemed outside the patent’s scope (Article 9 PA). Health authori - ties and similar entities are not required to par - ticipate in infringement or nullity proceedings. 1.3 Preliminary Injunction Proceedings Preliminary injunctions (both ex parte and inter partes) are of decisive importance because infringing products may have been commercially available for a significant period prior to a final judgment in the main proceedings. Furthermore, during this period, the patented technology may have become outdated, or the patent itself may have expired. Proceedings in Switzerland are, in principle, adversarial – that is, the oppos - ing party is given an opportunity to present its case prior to the handing down of a preliminary injunction. To streamline the preliminary injunc - tion proceedings, a mere exchange of writs is conducted followed by an oral hearing. Ex parte injunctions may be granted in circumstances of extraordinary urgency. Requirements for a Preliminary Injunction The following requirements must be credibly demonstrated for a preliminary injunction.
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