SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
Compulsory licences may be issued under extraordinary circumstances (see 1.15 Defences and Exceptions to Patent Infringement). 5.4 Damages The injured party may seek either traditional damages or the disgorgement of the profits earned by the infringer. Damage refers to an involuntary reduction of assets, which may consist of a reduction in assets, an increase in liabilities, or a loss of profit. The determining element is the dispar - ity between the injured party’s present financial status and the assumed financial status of the injured party in the absence of the detrimental incident. In practice, establishing damages may be difficult. The plaintiff could either prove that: a) income generated by the infringer should have accrued to the patent owner; or b) the plain - tiff could have generated a higher profit if the infringement had not occurred. Injured parties are obliged to furnish the most accurate feasi - ble evidence pertaining to particular instances of harm, such as the quantification of transac - tions omitted as a consequence of the patent infringement. In Switzerland, the issuance of preliminary injunctions is limited to the prevention of immi - nent harm. On the contrary, they cannot be uti - lised to seek compensation for harm that has already occurred. Consequently, the award of damages is limited to the main proceedings. According to established case law, damages encompass interest equal to 5% per annum commencing from the moment the damaging event had a financial impact. The exclusive licensee and patent owner are the only parties permitted to file a claim for infringe - ment (see 1.1 Claimants/Plaintiffs to an Action ).
Other licensees may, however, participate in an action (Article 75(2) PA). Therefore, it is essential for licensees to oblige the patent owner to take action against infringers in non-exclusive licence agreements. 5.5 Legal Costs Ordinary Costs The parties typically request that the ordinary and extraordinary costs of the proceedings be borne by the other party. Court expenses are commonly referred to as “ordinary costs”. The court costs are proportional to the disputed amount. If the disputed amount does not exceed CHF50,000, a court fee of CHF12,000 may be assessed. If the disputed sum exceeds CHF5 million, the court may assess court costs of up to CHF150,000. Extraordinary Costs Attorney’s fees and the necessary expenses of the parties are examples of “extraordinary costs”. The attorney’s fee is also proportional to the disputed amount. Accordingly, for dis - putes of up to CHF50,000, the attorney’s fee is between CHF2,000 and CHF16,000. In cases where the disputed amount exceeds CHF5 mil - lion, attorney’s fees range from CHF100,000 to CHF300,000. This does not preclude the attor - ney from reaching an agreement with their cli - ent based on hourly rates, which is the common practice. The difference may then be borne by the client. The Loser Pays In principle, the losing party is obliged to reim - burse the opposing party for all court costs, attorney’s fees and expenses, in addition to its own attorney’s fees and expenses. Court costs are typically payable in advance by the plaintiff. Payment of the advance on costs by the plain - tiff is a condition of the proceedings. If a party
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