SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
an opposing party, the court will take neces- sary measures to safeguard business and trade secrets and might exclude the applicant (but not its representatives) from taking part in the inspection. The court will draft a written report describing the product or process and before the applicant receives the report, the opposing party is given the opportunity to comment (Arti- cle 77, PatA). Under Swiss law there is no limitation as to how the evidence obtained through a description can be used, which means that a Swiss descrip- tion can also be used to support proceedings abroad. Swiss Civil Procedure Code The Swiss Civil Procedure Code also allows a more general right to ensure preliminary taking of evidence without any need to start civil litigation (Article 158, CPC). Similar evidence as during a pending litigation on the merits can be the sub- ject of such a preliminary taking of evidence – ie, the party may request witness hearings, the pro- duction of specifically identified documents, the inspection of goods or places or the drafting of a court-appointed expert’s report. The questioning of the parties, however, can only be part of the proceedings on the merits. In general, the parties to the case, and third parties, have a duty to co-operate in the tak- ing of evidence (Article 160, CPC). However, the court cannot enforce its order, if a party to the proceedings does not produce the required evi- dence. But the court will take such conduct into account when assessing the evidence and the facts of the dispute. 2.11 Initial Pleading Standards Under Swiss procedural law, the statement of claim must contain:
• the prayers for relief; • a statement of the value in dispute; • the allegations of fact; • a notice of the evidence offered for each alle- gation of fact; and • the date and signature. It is not required by law to state the legal argu- ments (since the court must know the law), but it is common practice to do so and some courts expressly expect the parties to briefly state on which grounds their actions are based. In general, in main proceedings, each party is entitled to two submissions during which it may provide new facts and evidence, amend its prayers for relief and limit the patent claims at stake, either inter partes or through a limitation request at the IPI. After the second submission, new facts and new evidence are admissible only if presented immediately after they become known and (i) if they occurred after the second submission (proper nova), or (ii) if they exist- ed before but could not have been submitted despite reasonable diligence (improper nova). At such stage, a limitation of the patent claims at stake will only be considered if it were triggered by new arguments or evidence brought forward in the rejoinder. In any case, new facts and new evidence are admitted only until the court begins its deliberations. 2.12 Representative or Collective Action Under Swiss law, no class actions or other col- lective actions are permitted. However, joinder of parties in civil proceedings is admissible. 2.13 Restrictions on Assertion of an Intellectual Property Right Restrictions on the assertion of patent rights may apply from the law against unfair competi- tion and antitrust law, in particular with respect
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