SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
7.2 Appeal Court(s) Arbiter Intellectual property law-related appeals are decided by the First Civil Division of the FSC. Divisions typically reach decisions with the participation of three judges. In response to a judge’s request or on matters of fundamental importance, five judges render decisions. There are no specialist judges for intellectual property at the FSC. 7.3 Special Provisions Intellectual property law does not stipulate any procedural requirements for the FSC. Thus, the procedural provisions of the Federal Act on the FSC are applicable. If the customs administration has reason to believe that the import, export or transit of goods may infringe on a valid Swiss patent, it may inform the patent owner (Article 86a ff PA). Such goods may be detained for three working days so that the patent owner can apply for protective measures. In the case of such an application, customs can block the goods for a maximum of 20 working days. Within this period, the pat - ent owner must obtain a decision (ex parte, pre - liminary or by means of criminal proceedings) to prevent the goods from being put onto the mar - ket. If this is not achieved within this period, the customs administration must release the goods. 8. Other Relevant Forums/ Procedures 8.1 The UPC or Other Forums 9. Alternative Dispute Resolution 9.1 ADR Options In principle, all civil disputes in the field of intel - lectual property law are arbitrable, even regard -
from the canton’s high court can be appealed to the FSC. The FSC is the highest court in Switzerland and its decisions cannot be appealed. In principle, appeals must be submitted to the FSC within 30 days of service of the reasoned decision of the lower court (Federal Patent Court or higher cantonal court). The appeal period is only ten days against judgments on the granting of a compulsory licence for the export of pharma - ceutical products. However, caution is required when it comes to preliminary injunctions ordered by the Federal Patent Court. In principle, only final decisions can be appealed to the FSC. Since preliminary injunctions must always be reviewed in the main proceedings, the Federal Patent Court’s order on preliminary injunctions is not a final decision. Such decisions can only be subject to appeal if they are likely to cause irreparable harm. If the Federal Patent Court rejects an application for provisional measures, and the rejection is con - sidered a final decision, an appeal to the FSC within 30 days is possible. Appeals against decisions on preliminary injunctions can only be challenged on the grounds of a violation of con - stitutional rights. In principle, there is only one exchange of writs before the FSC. Typically, the judges decide by way of circulation of the file and there is no hear - ing. If there is no consent among the judges, or if a judge requests it, the judges will hold an oral debate. The review of a lower court’s judgment by the FSC is limited to cases where the lower court has made blatantly erroneous factual find - ings, or national or international law has been improperly applied.
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