SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
An instruction hearing usually takes place before subsequent exchanges of writs. In around 50% of the cases, a settlement is reached at (or before) the instruction hearing. If no such settle - ment can be achieved, an additional exchange of writs occurs. Typically, a four-week timeframe is allocated for the reply and the rejoinder. In this situation, a two-week extension is permissible, provided a valid request is made prior to the The Federal Patent Court relies on a panel of specialists as judges. The parties are given the opportunity to provide written comments on the expert judges’ opinions once they become avail - able during the main proceedings. 1.6 Requirements to Bring Infringement Action The plaintiff may file a complaint once the pat - ent has been validly granted and the plaintiff has established the validity of the claims. The patent owner has the burden of proof regarding the alleged infringement. In the absence of such proof, the action for infringement is dismissed. An exception applies regarding specific process patents. Until proved otherwise, any product that is identical in nature is presumed to have been produced using the patented process, pro - vided that the invention pertains to a process for the manufacturing of a new product (Article 67 PA). This is especially pertinent in the context of pharmaceutical or chemical process patents. 1.7 Pre-Action Discovery/Disclosure deadline’s expiration. Panel of Specialists Even prior to the commencement of the main proceedings, the Swiss Civil Procedure Code permits the court to admit evidence on a pre - cautionary basis, provided a credible interest of protection can be demonstrated, which is typi -
cally the case if evidence is in jeopardy of being destroyed, lost or altered. In such proceedings, the court also evaluates the likelihood of suc - cess in a legal proceeding. The expenses associated with the precautionary collection of evidence, which may include com - pensation for the opposing party, are typically borne by the requesting party. If the requesting party subsequently initiates main proceedings and succeeds, the court may order that the expenses associated with the precautionary collection of evidence have to be borne by the losing counterparty. There is no discovery/disclosure available that is comparable, for example, with such remedies under US law. 1.8 Search and Seizure Orders The information in 1.7 Pre-action Discovery/ Disclosure also applies in general during the proceedings. Patent law does not require a party to hand over evidence in its possession. Nevertheless, a party can request the disclosure of evidence held by the other party. If the opposing party is unwilling or unable to disclose such evidence, it will only have an impact on the evaluation of the evidence by the court. Search orders are not available under Swiss Civil Procedure law. Preliminary injunctions, however, can lead to the seizure of infringing goods, for example, provided that the respective prerequisites are met. The destruc - tion of seized infringing goods, however, can only be awarded in the main proceedings. 1.9 Declaratory Relief In Switzerland, actions for a declaratory judg - ment are typically subordinate to actions for performance. The prerequisite for an immedi -
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