SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
1.11 Clearing the Way In Switzerland, there is no legal obligation to “clear the way” prior to the introduction of a new product. There is no obligation to challenge another patent in court prior to marketing a phar - maceutical product. 1.12 Experts Before the revision of the Swiss Code of Civil Procedure at the beginning of 2025, it was clear that court expert opinions were considered as evidence, whereas private expert opinions were merely considered as party statements. A par - ty’s expert opinion might have been useful when assessing the chances of winning a legal dis - pute, attempting to reach a settlement with the opposing party, or initiating a lawsuit that was well founded. Since the beginning of 2025, it is stipulated that the party’s expert opinion is considered a physi - cal record. Physical records, then, are consid - ered evidence. However, it remains to be seen whether this revision will actually have an impact on the probative value of the party’s expert opin - ion. Since the Federal Patent Court employs special - ised judges (see 1.5 Timing for Main Proceed- ings on Infringement/Validity ), expert opinions are of lesser significance in patent proceedings. Instances where technical expert opinions are requested are exceedingly rare and occur only when the court is unable to decide the case with its own technically proficient judges. After a court has ordered an expert opinion, all par - ties involved must be given the opportunity to provide their comments on the expert opinion. 1.13 Use of Experiments The Swiss Civil Procedure Code exhaustively lists the methods of establishing evidence (tes -
ate declaratory judgment is that the plaintiff can establish a substantial legal interest, such as that the legal relationship between the parties is ambiguous but can be resolved by means of a judgment. Such ambiguity must, however, be so severe that the plaintiff cannot reasonably be expected to endure its continuation. For instance, the required interest of a plaintiff for a declaratory (negative) judgment regard - ing an alleged patent infringement was upheld by the Federal Supreme Court (FSC) in a case where the defendant had issued a cease-and- desist letter to prevent the plaintiff from conduct - ing business with an allegedly infringing product (FSC 129 III 295, E 2.4). It is worth mentioning that in the context of inter - national relations, a party’s desire to secure a favourable place of jurisdiction for an upcoming court case may qualify as a sufficient interest in a declaratory judgment (FSC 144 III 175). 1.10 Doctrine of Equivalents The doctrine of equivalents is used in Switzer - land. According to Swiss court practice, the following three questions must be answered in the affirmative to demonstrate an equivalent infringement: • is the functional feature of the allegedly infringing product – from an objective point of view – the same as that of the original prod - uct (same effect)? • is the replaced feature and its equal objective function obvious to a hypothetical specialist (accessibility)? • is the patent specification drafted in such a way that a hypothetical specialist would con - sider the replaced feature to be a solution of equal value (equal value)?
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