SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
to restrictions against parallel imports which are not justified (Article 9a, PatA and Article 5, Swiss Cartel Act) and unlawful practices by market- dominant undertakings or undertakings with rel- ative market power (Article 7, Swiss Cartel Act). Furthermore, a patent owner might be restricted in the enforcement of their rights due to their forfeiture based on Article 2 of the Swiss Civil Code (acting in good faith), in particular if they were to wait too long before initiating enforce- ment proceedings (see 2.9 Special Limitation Provisions ). 3. Infringement 3.1 Necessary Parties to an Action for Infringement Civil Actions A patent owner who has their rights infringed, or is threatened with an infringement, may initiate a civil action. The exclusive licensee, irrespective of the registration of the licence in the patent register, may also bring an infringement action independently, provided this is not expressly excluded by the licence agreement (Article 75, PatA). Non-exclusive licensees, however, may only join the infringement proceedings filed by the patent owner or the exclusive licensee in order to claim their own losses or damages. An infringement action can be raised against any person: • who uses a patented invention unlawfully; • who refuses to notify the authority concerned of the origin and quantity of products in their possession which are unlawfully manufac- tured or placed on the market, and to name the recipients and disclose the extent of any
distribution to commercial and industrial customers; • who removes the patent mark from products or their packaging without authorisation from the proprietor of the patent or the licensees; and • who abets any of the said offences, partici- pates in them, or aids or facilitates the perfor- mance of any of these acts (Article 66, PatA). If there are several infringers, the claimant is not obliged to initiate the infringement action against Criminal proceedings can be initiated against the same persons provided that they wilfully com- mitted the patent infringement, on complaint by the patent owner or ex officio, if the infringer acts for commercial gain (Article 81, PatA). 3.2 Direct and Indirect Infringement Swiss law does not explicitly contain a doctrine distinguishing between direct and indirect patent infringement. Whoever commits an infringement act as described in Article 66 of the PatA may be held liable under Swiss civil and criminal law. However, the PatA implicitly distinguishes between direct infringement (Article 66 littera a, b and c, PatA) and contributory infringement (Article 66 littera d, PatA), according to which any person who abets, participates in, aids or facilitates the performance of any (direct) infringement may also be held liable under civil and criminal law. According to case law of the Swiss Federal Supreme Court, a contributory infringement is accessory to a direct infringe- ment, meaning that an unlawful principal act is required for a contributor infringement, where- by it is sufficient for a claim for injunctive relief all potential infringers. Criminal Proceedings
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