SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
An action for the cancellation of a patent could also be brought by a person with a demonstrat- ed interest if the grant of licences does not suf- fice to meet the demand of the domestic mar- ket after a period of two years from the grant of the first compulsory licence (Article 38, PatA). Such actions are very rare and to date no patent appears to have ever been cancelled based on such action in Switzerland. Finally, based on the prohibition against double patenting, a Swiss patent is revoked in favour of a European patent for one and the same inven- tion with effect in Switzerland and granted to the same inventor or to their successor in title with the same filing or priority date (Article 125 paragraph 1, PatA). 4.2 Partial Revocation/Cancellation Partial cancellation is possible if the successful invalidity action relates to certain patent claims only (Article 27, PatA). 4.3 Amendments in Revocation/ Cancellation Proceedings A patent owner may amend a patent by surren- dering a patent claim, limiting an independent claim by combining one or more patent claims which are dependent on it or limiting an inde- pendent claim in some other way (see 1.10 Post-Grant Proceedings Available to Owners of Intellectual Property Rights ). A patent may also be amended during invalidity or infringement proceedings. However, the pat- ent owner is only able to rely on the amended patent up to a certain stage of the proceedings. The Swiss Federal Supreme Court has clari- fied that if the patent owner amends the pat- ent through the IPI during pending infringement proceedings, this has an ex tunc effect and
thus the original patent that is the subject of the infringement proceedings no longer exists. If the introduction of new facts (ie, the amended patent) is no longer admissible at the stage of the proceedings in question, the infringement proceedings must be dismissed. This is gen- erally the case if the patent is limited after the second pleading, at which stage new facts and new evidence are admissible only under very strict circumstances (see 2.11 Initial Pleading Standards ). Hence, if the patent owner wants to proceed against the alleged infringer based on the amended version of the patent, they must commence new infringement proceedings. 4.4 Revocation/Cancellation and Infringement Where an invalidity claim is raised as a defence within patent infringement proceedings, that invalidity claim is heard at the same time and within the same proceedings. The Swiss patent litigation system is not bifurcated. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights Procedural Provisions The Swiss Federal Patent Court has exclusive jurisdiction in certain civil patent litigations. How- ever, the proceedings before the Federal Patent Court are primarily based on the ordinary Swiss Civil Procedure Code, which applies to all civil proceedings. The Patent Court Act only contains a few provisions relating to the proceedings (eg, composition of the panel, jurisdiction and legal representatives). Typical Steps of Infringement Proceedings Ordinary infringement proceedings are initiated by filing a written statement of claim, followed
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