SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
the necessary information and the infringer may be ordered to render account on the sales and gross turnover made from the infringing activi- ties. Such a claim is usually asserted in a so- called action by stages. See 5.1 Special Pro- cedural Provisions for Intellectual Property Rights . The court is bound by the available civil rem- edies and the parties’ prayers for relief and has no discretion in ordering other remedies. 6.2 Rights of Prevailing Defendants According to Swiss civil procedure law, the los- ing party must bear the court costs and has to reimburse the prevailing party for its legal costs and expenses, including the costs for assisting patent attorneys. The compensation for legal costs is calculated based on tariffs depending on the value of the dispute. Such compensation will often not cover all the fees actually incurred. If the defendant has incurred damages as a con- sequence of the proceedings, they may claim compensation for such damages. Within pro- ceedings for interim measures, the court may make the interim measure conditional on the payment of a security deposit by the applicant, if it is anticipated that the measures may cause damage to the opposing party. An applicant for interim relief is liable for any damages caused in the event such measures are later found to be unjustified. If the applicant proves, however, that they applied for the measures in good faith, the court may reduce the damages or entirely release the applicant from liability (Article 264, CPC). 6.3 Types of Remedies The same types of remedies are available for infringements relating to Swiss national patents and Swiss parts of European patents. Essential-
ly, the same types of remedies are available for civil proceedings involving inventions protected as trade secrets. See 1.5 Rights and Obliga- tions of Owners of Intellectual Property Rights for further detail. 6.4 Injunctions Pending Appeal An appeal to the Swiss Federal Supreme Court does not have suspensive effect and, accord- ingly, injunctions granted at first instance are enforceable during the appeal proceedings. Upon request, the Federal Supreme Court may grant suspensive effect, but this is quite rare. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings Appeals to the Swiss Federal Supreme Court against decisions of the Federal Patent Court or the civil cantonal courts as sole instance follow the same rules as appeals in civil matters. 7.2 Type of Review The Swiss Federal Supreme Court’s discretion when reviewing final decisions of prior instances on the merits is limited to legal questions. In a recent judgment the Swiss Federal Supreme Court decided that the construction of pat- ent claims is a legal question. In addition, the assessment of invalidity grounds is also a legal question. In contrast, a review of the facts is only possible in a very limited manner by ascertaining an abuse of law by the prior instance in arbitrarily determining the facts (Article 97, Supreme Court Act (SCA)). With regard to decisions on interim measures, the discretion of the Swiss Federal Supreme Court is narrower and limited to a review of a violation of constitutional rights (Article 98, SCA).
495 CHAMBERS.COM
Powered by FlippingBook