SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
priority date of the patent application (Article 35, PatA)); in this case, the defendant might have to pay the patent owner appropriate compensation (Article 48, PatA). • That the patent in question is a standard essential patent and defendants rely on a FRAND (fair, reasonable and non-discrim- inatory) licence; so far, no case law in this respect has been established in Switzerland since all FRAND cases in front of the Federal Patent Court have been settled. 3.6 Role of Experts As a general rule, the Federal Patent Court makes its decisions as a three- or five-member body (panel), of whom at least one member must possess technical training. One of the techni- cally trained judges will issue a written opinion (the “Technical Opinion”) covering all technical aspects of the case and the parties are given the opportunity to comment. Such Technical Opin- ions do not bind the other judges, although in many instances they will be largely followed in the judgment. Additional technical know-how, at the request of a party or ex officio, may be obtained by an opin- ion from one or more external experts appointed by the court ad hoc (Article 183, CPC). However, external expert opinions basically do not play a role in patent proceedings, since the Federal Patent Court has technically trained judges with expertise in all relevant fields of science. The parties may submit written expert state- ments. However, these are considered as asser- tions of the parties only. 3.7 Procedure for Construing the Terms of the Patent’s Claim All arguments against the infringement of patent claims must be raised within the same proceed-
ings. There is no separate procedure for constru- ing patent claims. 3.8 Procedure for Third-Party Opinions Swiss law does not provide for a mechanism in which a third party that is not a party to the pat- ent proceedings could file, on its own, any kind of amicus brief to the court. 4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation There are several reasons for a revocation or cancellation of a patent. Often, a patent registered in the Swiss patent register is cancelled because the renewal fees are not paid on time. Swiss national patents or Swiss parts of Euro- pean patents are also cancelled, and removed from the Swiss patent register, if an action for invalidity of the patent has been successful. The cancellation is done by the IPI upon the provi- sion of full official copies of the final judgments. Any person with a proven interest may bring an invalidity action if the invention is excluded from patentability (eg, human body), is obvious, not novel, not disclosed in a way that a person skilled in the art could carry it out or if the appli- cation has been unduly amended (Articles 26 et seq, PatA). The requirements for the interest to be demonstrated by the claimant are rather low. The only exception is an invalidity action based on the allegation that the patent owner has no right to the grant of the patent. This particular ground for invalidity can only be asserted by the person claiming to actually be entitled to the pat- ent.
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