SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
• an order to a registering authority or to a third party; or • performance in kind. 2.8 Protection for Potential Opponents Any person who has reason to believe that an ex parte interim measure will be applied against them, may set out their position in advance by filing a protective letter (Article 270, CPC). Protective letters must be filed with the Federal Patent Court and/or the cantonal courts that are likely to have jurisdiction for ordering the ex parte interim measures in the case at hand. The other party will be served with the protective letter only if they actually initiate the respective ex parte proceedings. The protective letter becomes inef- fective six months after it was filed. 2.9 Special Limitation Provisions Statute of Limitation Monetary claims in patent infringement proceed- ings are time-barred after three years from the date on which the injured party became aware of the loss or damage and of the identity of the person liable for them, but in any event ten years after the date on which the loss or damage was caused. If the action for damages is derived from an offence for which criminal law envisages a longer limitation period, that longer period also applies to the civil claim. Claims for injunctive and declaratory relief are, in principle, not time-barred, but rather remain available as long as there is a legitimate interest in obtaining such a relief. Forfeiture The enforcement of rights might be limited due to their forfeiture based on Article 2 of the Swiss Civil Code, which requires every person to act in good faith in the exercise of their rights. If a
person waits too long before initiating enforce- ment proceedings, their rights may be forfeited if the court determines, taking into account all relevant circumstances, that the claimant acted against good faith. As an example, the right to apply for interim measures is considered for- feited 14 months after the patent owner actually learned, or should have learned, of the infringe- ment unless there are special circumstances (see 2.7 Interim Injunctions ). With regard to main proceedings, forfeiture is likely to occur after approximately eight years. Based on Swiss case law, urgent status will not be granted by the courts if the patent owner has waited so long. 2.10 Mechanisms to Obtain Evidence and Information Swiss procedural law does not provide any pro- cedural mechanisms for far reaching US-style fishing expeditions in order to obtain all evidence from the opposing party that might be relevant. However, there exist certain mechanisms allow- ing a party to obtain specific evidence. PatA Under the PatA, a patent owner with a legitimate interest – ie, providing prima facie evidence that their patent has been infringed or an infringe- ment is suspected – may request that the Fed- eral Patent Court order as an interim measure: • the securing of evidence; and/or • a precise description to be made of the alleg- edly unlawful processes used and/or of the allegedly unlawful products manufactured, as well as the means used to manufacture them (Article 77, PatA). The procedure for making the description is typi- cally carried out by a technically trained judge and a clerk at the location where the alleged infringement takes place. Upon the request of
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