SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
ment of the case, which should serve as a basis for settlement discussions. A considerable num- ber of disputes are settled at this stage. 5.4 Other Court Proceedings In respect of contractual rights related to pat- ents, such as ownership and licence rights, legal actions may not only be filed with the Federal Patent Court but also with the cantonal courts (Article 26 paragraph 2, PCA). Where the invalid- ity or infringement of a patent is to be adjudicat- ed in such proceedings as a preliminary question or on a defence basis, the cantonal court grants the parties a reasonable period of time for fil- ing the validity or infringement action before the Federal Patent Court, which has exclusive juris- diction over this subject matter (see 2.3 Courts With Jurisdiction ). The cantonal court must then stay the proceedings until a final decision has been made by the Federal Patent Court. How- ever, considering that actions before cantonal courts with regard to patents have become very rare since the establishment of the Federal Pat- ent Court, the influence of cantonal proceedings on the others are, in practice, very limited. If infringement proceedings before the Federal Patent Court relate to a European patent which is the subject of pending opposition or appeal proceedings before the EPO, the Federal Pat- ent Court may stay its proceedings. In practice, however, this plays only a very limited role, since the Federal Patent Court emphasises that it only suspends its proceedings if a decision by the EPO can be expected in a short time. Instead, it is the Federal Patent Court’s standard practice to submit an acceleration request to the EPO. Parallel infringement proceedings in front of oth- er European courts do not have a direct influ- ence on proceedings before the Federal Patent Court. The Federal Patent Court, however, is
generally interested in judgments of other Euro- pean courts when parallel parts of European pat- ents are involved, although such judgments do not bind the Swiss courts in any way. Anti-suit injunctions of foreign courts are gener- ally considered as inadmissible under Swiss law.
6. Remedies 6.1 Remedies for the Patentee
Civil remedies for patent owners include injunc- tions or reparatory remedies, damages (includ- ing legal costs), declaratory judgments, delivery up or destruction of infringing goods, a recall order and publication of the judgment. See 1.5 Rights and Obligations of Owners of Intellec- tual Property Rights for further detail. Permanent injunctions are the most common remedy sought in infringement proceedings and are generally granted if an infringement is affirmed. In order to enforce the injunction, the judgment provides for administrative fines (per day of violation) if the infringer does not comply with the injunction, and for criminal sanctions. For past infringements, the patent owner may claim monetary remedies in the form of damages such as lost profits or, if the infringer acted in bad faith, account of the infringer’s profit. Alter- natively, the patent owner can choose to ask for surrender of the unjust enrichment in the form of a reasonable royalty rate. Swiss law does not provide for punitive or exemplary damages or the like. Since the patent owner usually does not have all the necessary information to prove the amount of damages or the profit to be surrendered, Swiss law grants the patent owner a claim for
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