SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
Action by Stages An infringement action is typically initiated as a so-called action by stages ( Stufenklage ). In the first stage, the Federal Patent Court renders a partial judgment on the validity of the patent (if contested), the infringement, injunctive relief and the disclosure of information for the calculation of monetary relief. In the second stage, the pat- ent owner asserts the amount of its monetary relief claim based on the information received and the Federal Patent Court decides on the monetary relief. 5.2 Decision-Makers The Federal Patent Court makes its decisions as a three-member (or occasionally a five-member) body (panel), of whom at least one member must possess technical training. In the rare proceedings concerning patent mat- ters that are ruled before civil cantonal courts (see 5.4 Other Court Proceedings ), external technical experts may be appointed to submit an expert opinion ex officio or at the request of a party (Article 183, CPC). However, the final deci- sion remains with the judges also with regard to technical questions. 5.3 Settling the Case Settlements may be agreed at any stage of civil proceedings. They may be discussed with the mediation of the court or upon separate negotia- tions among the parties only. Swiss courts often actively support the parties in order to find a set- tlement. In front of the Swiss Federal Patent Court, the parties are summoned to an instruction hear- ing after the exchange of the first briefs (see 5.1 Special Procedural Provisions for Intellectual Property Rights ). During this hearing, the court will present a confidential preliminary assess-
by a written statement of defence in which the defendant usually asserts invalidity of the patent either by way of a defence or by filing a coun- terclaim. After the exchange of the first briefs, the parties are summoned to an instruction hearing in front of a delegation of the court, normally consist- ing of the court president, the leading technical judge and a court clerk. The instruction hearing consists of two parts. In a first part that is min- uted, the court delegation can pose questions to the parties to seek specific clarifications or to get information with respect to parallel proceed- ings. The delegation will also mention if further substantiation is required. This part is normally quite short. The second, informal part of the instruction hearing is not minuted. The delega- tion of the court will present a confidential pre- liminary assessment of the case and the parties may then engage in court-mediated settlement negotiations. If no settlement is found, the proceedings con- tinue and the parties will exchange their second briefs (ie, reply, rejoinder and comments on new invalidity arguments and evidence in the rejoin- der). Thereafter, the technical judge will issue their written expert opinion, on which the parties may comment in writing. As a final step, the par- ties are summoned to the main hearing. After the parties’ pleadings, the court can decide whether a court expert will be appointed, witnesses will be heard, or other evidence will be taken. In most cases the court closes the proceedings after the main hearing and renders its judgment in writing within four to six weeks. Ordinary proceedings on the merits concerning infringement or the nullity of a patent generally take about 18 to 24 months.
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