SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
1.5 Timing for Main Proceedings on Infringement/Validity An Action for Nullity In principle, an action for nullity can be initiated at any time. In Swiss civil proceedings, the prin - ciple applies that two unrestricted statements may be made on the matter. This necessitates that the defendant raises the nullity defence no later than in the second exchange of writs. An instruction hearing is often scheduled prior to the main hearing. Should this occur prior to the second exchange of writs, then the nullity defence should have been raised during the In the case of infringement claims, it should be noted that claims for damages or for the dis - gorgement of profits may be subject to defence of the statute of limitations. A relative three-year statute of limitations applies to unauthorised acts, commencing on the date of identification of the infringer and knowledge of the damag - ing act or actual damage. An absolute statute of limitations of ten years applies, commencing from the damaging event. Injunctive Relief, Removal and Declaratory Judgment instruction hearing. Infringement Claims Claims for injunctive relief, removal and declar - atory judgment are not subject to a limitation period. Timeline of Lawsuits and Hearings The Federal Patent Court generally sets a dead - line of six weeks for a written response to the lawsuit (see 1.3 Preliminary Injunction Proceed- ings ). Upon reasoned request before expiry of the deadline, an extension of two weeks may be granted. Additional extensions are typically permissible solely with the opposing party’s con - sent.
Any presumable defendant may file a caveat to the Federal Patent Court if such defendant expects a counterparty to request an ex parte injunction. The caveat will only be notified to the counterparty if it initiates an ex parte proceeding. It expires six months after submission, although an additional six-month renewal is possible. 1.4 Structure of Main Proceedings on Infringement/Validity It is not mandatory to initiate nullity and infringe - ment proceedings concurrently in the form of a main action and counterclaim. Even if the actions are brought at long intervals, a suspen - sion of one of the proceedings is unusual. Valid - ity is often challenged as a means of defence in infringement proceedings. An initial action brought by the infringer for nullity is rare. The defence of nullity is examined on a prelimi - nary basis and is inextricably linked to the main proceedings – if the claim in the main proceed - ings is withdrawn, the defence automatically falls away. Upon confirmation, the defence of nullity enters into force among the disputing parties regarding the ongoing lawsuit. The judg - ment merely declares the preliminary nullity and does not factor into the judgment dispositive. The patent entry in the register remains intact. Additionally, nullity may be claimed by a coun - terclaim. Such judgment, if successful, has an erga omnes effect. Consequently, the patent will be revoked. It should be noted that Swiss patent law pro - vides for a suspension of proceedings under certain conditions for European patents (Article 128 PA; see 1.16 Stays and Relevance of Paral- lel Proceedings ).
324 CHAMBERS.COM
Powered by FlippingBook