SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
timony, physical records, inspection, expert opinion, written statements, questioning and statements of the parties). An experiment might be requested as part of an “inspection”. 1.14 Discovery/Disclosure In principle, no evidence is collected ex officio in Swiss civil proceedings. It is the responsibility of the parties to introduce facts and evidence into the proceedings in due course. There are two unrestricted statements on the matter for each party, in which the presentation of new facts and evidence is allowed. Hence, the par - ties must introduce all new facts and associated evidence in the second exchange of written sub - missions at the latest, or at the instruction hear - ing, if applicable. Thereafter, the presentation of amendments (new facts and evidence) is only possible in limited circumstances, for example, when new facts have arisen, or evidence has surfaced after the submission of the second writ. However, if one party submits new facts or evi - dence in its second and final writ, the other party is entitled to provide a response to the newly introduced facts and evidence (unrestricted right of reply in the context of the right to be heard). The court-imposed deadline for this response usually ranges from five to ten days. 1.15 Defences and Exceptions to Patent Infringement Typically, the assertion that a product or process does not infringe the patent is put forward as a defence. Certain acts are excluded by law from obtaining patent protection (Article 9 PA), such as actions performed in the personal sphere for non-commercial objectives, actions performed at educational institutions for educational pur - poses, actions performed as part of a medical activity concerning medicinal products and an individual, or the direct preparation of medicinal
products in pharmacies to fulfil a prescription (see also 2. Generic Market Entry ). Swiss patent law grants rights to compulsory licences under specific conditions (Article 36 et seq PA). In all cases involving compulsory licences, it is essential that the applicant has been unable to secure a contractual licence on reasonable market terms within a reasonable timeframe. A compulsory licence may be grant - ed for the manufacture and export of certain pat - ented products. This includes pharmaceuticals, active ingredients, diagnostic kits, and vaccines required in underdeveloped countries to com - bat health issues such as HIV/AIDS, tubercu - losis, malaria, COVID-19, and other epidemics and pandemics. Many of the common defences are available under the PA: nullity of the plain - tiff’s patent, consent and licences granted to the “infringer”, exhaustion, experimental use, “Formstein” defence, “Gillette” defence, etc. While the Swiss courts have not yet expressly ruled on either the “Formstein” or the “Gillette” defences, an analogous application appears possible. In general terms, Swiss case law has for years accepted the state-of-the-art defence. Swiss law has not expressly included the “Bolar” exemption, but it provides a similar research exemption (see 2.1 Infringing Acts ). 1.16 Stays and Relevance of Parallel Proceedings The Federal Patent Court has exclusive juris - diction in the first instance for infringement and validity issues. As already mentioned above, preliminary injunctions and ex parte injunctions can also be asserted before the lis pendens in the main proceedings (see 1.3 Preliminary Injunction Proceedings ). Switzerland’s non-membership of the EU pre - cludes the application of the “Brussels Ia”
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