SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
against the contributory infringer that a direct infringement is imminent. With regard to its application in an international context, the accessoriness has the effect that the contributory infringer acting in Switzerland but contributing to a direct infringement abroad cannot be held liable under Swiss law. On the other hand, if the direct infringement takes place in Switzerland, a contributory infringer contribut- ing to that infringement may be liable irrespective of whether the contributory acts are performed in Switzerland or abroad. Regarding the supply of (non-infringing) mate- rials or parts to a customer who uses these parts or materials for the manufacture of goods infringing a patent, the Swiss Federal Supreme Court has clarified that the supplier is liable as contributory infringer if they knew or should have known that the means supplied were suitable for, and intended to be used by, the customer for use in the infringing goods. 3.3 Process Patents The most important particularity of process patent infringement proceedings concerns the burden of proof. In general, the claimant carries the burden of proof in infringement proceedings. However, the burden of proof may be reversed if the patent in question is a process patent. If an invention concerns a process for the manufac- ture of a new product, every product of the same composition is presumed to have been made by the patented process until proof to the con- trary has been provided (Article 67 paragraph 1, PatA). The same applies by analogy to a process for the manufacture of a known product if the patent owner provides prima facie evidence of an infringement of the patent (Article 67 para- graph 2, PatA).
Regarding the territorial scope of a process patent infringement, the general rules apply, meaning that a direct infringement must occur in Switzerland in order for Swiss law to apply. Accordingly, the Swiss Federal Supreme Court held in a case that if a device intended for car- rying out a patented process is manufactured in Switzerland, but the process itself is only carried out abroad, the process patent is not infringed in Switzerland. 3.4 Scope of Protection for an Intellectual Property Right Literal Infringements The patent claims determine the scope of pro- tection of a patent (Article 51 paragraph 2, PatA). According to established practice, the patent claims must be interpreted from the viewpoint of a skilled person, starting with the claim language but also taking into account the description and the drawings. General technical knowledge is also accepted as a means of interpretation. The Swiss Federal Supreme Court held that the prosecution history of a patent is, in general, not decisive for the interpretation of the patent claims. Waivers and limitations made by the pat- ent applicant during prosecution are to be taken into account only to the extent that they are ulti- mately reflected in the patent claims and/or the description. Equivalent Infringements The PatA explicitly holds that an imitation is also deemed to constitute a use (Article 66 littera a, PatA) and, hence, not only literal infringements but also equivalent infringements are known under Swiss law. The Swiss Federal Supreme Court and the Federal Patent Court have elabo - rated in several decisions, taking into account other European courts’ practice, a standard test
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