SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
• The plaintiff must demonstrate either own - ership or the status of exclusive licensee of a patent that is officially recognised in Switzerland (see 1.1 Claimants/Plaintiffs to an Action ), as well as that the defendant is interfering, or threatening to interfere, with the scope of protection of this patent. • The infringement threatens to cause the plaintiff to suffer irreparable harm, including due to market confusion, destruction of the patent owner’s licensing agreement system, or difficulty in re-establishing a connection with customers who have migrated to another product. • The plaintiff must have a sense of urgency in initiating proceedings. Absence of urgency is evident when the initiation of main pro - ceedings could have been achieved earlier. Preliminary injunction proceedings before the Federal Patent Court usually take approxi - mately ten months and main proceedings 24 months. The plaintiff forfeits the right to a preliminary injunction when the delay in filing for such an injunction exceeds 14 months from the date of learning of the infringement. Ex parte injunctions require an even higher degree of urgency. Generally, decisions regarding ex parte injunctions are rendered quickly. When necessity dictates, the Federal Patent Court has the authority to render a decision regarding an application on the day it is served. • Additionally, the extent of the likely damage must be reflected in the measure. A fact is considered credibly demonstrated when the judge finds the presentation to be “pre - dominantly true”, notwithstanding the absence of complete elimination of doubt. Document- based evidence is required. Other types of evi - dence are deemed admissible only if they can be
presented without delay or if they are required for the purpose of the proceedings. Amendments to Preliminary Injunctions Preliminary injunction proceedings are inde - pendent proceedings that may be initiated either prior or subsequent to the initiation of the main proceedings. They only offer interim legal pro - tection and are of a provisional nature. There - fore, they are subject to amendment if there is a change in the circumstances on which the preliminary injunction is based. If preliminary injunctions have been applied for prior to the commencement of the main proceedings, the interim judgment must be confirmed in the main proceedings. The court that handed down the preliminary injunction must set a deadline for fil - ing such confirmation. If this deadline is missed, the injunction will lapse. By demonstrating an exceptionally high level of urgency, the court may grant an ex parte injunc - tion without hearing the counterparty in the first step. Concurrent with granting an ex parte injunction, the court either invites the counter - party to a hearing or sets a deadline for the sub - mission of a written statement. After the hearing, or having read the counterparty’s statement, the court decides (again) on the preliminary injunc - tions. Typically, the defendant becomes aware of the preliminary injunction through either the court order requiring the submission of a statement or the invitation to the hearing. Court orders and summons are delivered by registered mail. If delivery is not possible, the defendant is obliged to retrieve the court documents from the post office. Seven days after an unsuccessful deliv - ery attempt, service is considered to have been effected even if the documents remain uncol - lected.
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