SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
in connection with patents, such as licensing disputes, are often submitted to arbitral tribu- nals. 2.5 Prerequisites to Filing a Lawsuit There are no special prerequisites for filing a pat- ent action in Switzerland. Civil actions relating to intellectual property rights can be filed with the competent court without any need to attempt conciliation in front of a conciliation authority. The issuance of warning letters is also not required, although mostly recommended to con- solidate the legitimate interest of the claimant and to support the attribution of the procedural costs to the defendant. Sometimes litigation costs can even be avoided following settlement discussions or voluntary undertakings triggered by warning letters. If patent infringement proceedings are com- menced by an entitled licensee (see 3.1 Neces- sary Parties to an Action for Infringement ), it is not required that the licence is registered in the patent register. 2.6 Legal Representation Parties may decide, but do not have any obliga- tion, to be represented by an attorney at law in intellectual property matters. If a party decides to be represented in front of a Swiss court, the representative must be a qualified attorney at law. In proceedings concerning the validity of a patent in front of the Federal Patent Court, the parties may also be represented by a qualified and admitted patent attorney (Article 29, PCA). 2.7 Interim Injunctions Measures for interim relief are available under Swiss law if the applicant can provide prima facie evidence that the following requirements are met:
• the right to which they are entitled has been infringed or an infringement is imminent; • such infringement threatens to cause not eas- ily reparable harm; • the requested relief is relatively urgent; and • the requested relief is proportionate to the harm caused by the alleged infringement (Articles 261 et seq, Civil Procedure Code (CPC)). Note that urgency is not a strict requirement for granting interim relief. However, interim relief will not be granted if the applicant has waited for a substantial period of time (according to cur- rent practice, for more than 14 months) before requesting measures for interim relief. In cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party (ex parte interim measures) (Article 265, CPC). The ex parte inter- im measures must subsequently be confirmed in inter partes proceedings granting the opposing party its right to be heard. In addition, all interim relief proceedings require confirmation in main proceedings. In an interim judgment, the Federal Patent Court will set a deadline for the commencement of main pro- ceedings, whereby the injunction lapses if the applicant does not initiate main proceedings, in which case the applicant is liable for any dam- ages caused to the defendant. In interim relief proceedings the applicant can, in particular, request: • an injunction; • an order to remedy an unlawful situation;
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