SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
Regulation (Regulation (EU) 1215/2012), which governs the recognition and enforcement of judgments in civil and commercial affairs. This fact must be considered in an international con - text. However, Switzerland is a signatory to the Lugano Convention, which was established in accordance with the “Brussels Ia” Regulation. Swiss courts therefore generally adhere to the case law of the European Court of Justice (ECJ) or at least consider it diligently. If the same parties bring actions before the courts in different member states of the Lugano Convention regarding the same claim, the Luga - no Convention stipulates that the court seized in the second order shall stay its proceedings until the court seized in the first order has decided on its jurisdiction. Beyond the scope of application of the Lugano Convention, Swiss international procedural law states that the subsequently seized Swiss court shall stay its proceedings if a competent foreign court is expected to ren - der a recognisable decision within a reasonable period of time. Swiss patent law provides that the Federal Pat - ent Court may stay its proceedings in certain circumstances, for example if the European Pat - ent Office has not yet rendered a decision on the limitation of a European patent or if an opposi - tion is pending at the European Patent Office (Article 128 PA). So far, such a stay has played a minor role in court practice. If the Federal Pat - ent Court is aware of a pending opposition, it will make an ex officio request to speed up the proceedings before the European Patent Office. 1.17 Patent Amendment An amendment to the action is admissible if the amended or new claim is factually related to the previous claim or if the opposing party agrees. During the main hearing, an amendment to the
claim is only admissible if it is based upon newly discovered facts and evidence that did not previ - ously exist. An amendment to the claim is generally admis - sible if it targets the same object of infringement and is founded on the same, potentially restrict - ed patent. 1.18 Court Arbiter In Switzerland, patent disputes are decided in the first instance before the Federal Patent Court only. The FSC serves as the appellate court. Therefore, forum shopping only occurs in non- patent related IP litigation. In ordinary proceedings, cases are dealt with by panels of three, five or seven judges. Each panel includes both jurists and technicians (see 1.5 Timing for Main Proceedings on Infringement/ Validity ). Preliminary injunctions are dealt with by a single judge. When legal or factual considera - tions so require, a panel of three judges may ren - der decisions. There are no juries in Switzerland. All actions aimed at obtaining marketing author - isation for a medicinal product (not only for a generic product), including but not limited to acts of scientific research, clinical trials, and the application for reimbursement or engage - ment in activities related to price fixing, are excluded from the validity of a patent (Article 9(1)(b)(c) PA). Swiss law does not contain any explicit provisions that implement or reference the “Bolar” exemption; however, Article 9(1)(b)(c) PA operates analogously. Thus, in cases involv - ing generic entry, the aforementioned activities 2. Generic Market Entry 2.1 Infringing Acts
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