SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
8. Costs 8.1 Costs Before Filing a Lawsuit
9. Alternative Dispute Resolution 9.1 Type of Actions for Intellectual Property In Switzerland, alternative dispute resolution (ADR), or, more specifically, arbitration, is an important means of resolving intellectual prop- erty disputes, particularly in international cases where a single decision is advantageous. ADR in Switzerland is attractive for patent dis- putes as Switzerland provides for arbitration experts in most fields of technology and has a liberal regime regarding the recognition and enforcement of arbitral awards. According to Swiss case law, all aspects of intel- lectual property disputes are arbitrable, includ- ing contractual issues related to patents as well as disputes over the validity of patents. Whereas arbitration proceedings related to mere validity disputes are rather rare, contractual disputes are often the subject of arbitration proceedings (see 2.4 Specialised Bodies/Organisations for the Resolution of Disputes ). 10. Assignment and Licensing 10.1 Requirements or Restrictions for Assignment of Intellectual Property Rights Under Swiss law, the assignment of intellectual property rights consists of the undertaking to assign the right and the actual disposition of the right. While the undertaking to assign the right is not required to fulfil specific formal require- ments, the actual transfer of the patent or pat- ent application rights must be made in writing (Article 33 paragraph 2bis, PatA).
Prior to filing a patent lawsuit, there may be significant costs associated with the technical assessment of a patent’s validity (as the defend- ant’s usual defence will be to bring an invalidity action against the patent) and the assessment of the potential infringement of said patent by the allegedly violating goods of the counterparty. Additional costs may arise for the issuance of warning letters or the preparation and filling of protective briefs. 8.2 Calculation of Court Fees Court costs are calculated based on tariffs depending on the value of the dispute. Upon filing an action, the claimant is requested to advance part of the court costs. As of January 2025, the revised Swiss Code of Civil Procedure (CPC) stipulates that the advance payment can- not exceed half of the anticipated court costs in all civil proceedings. In proceedings before the Federal Patent Court, this amount typically cor- responds to the expected costs incurred up to and including the instruction hearing. 8.3 Responsibility for Paying the Costs of Litigation As a principle, the losing party must bear the court costs and has to reimburse the prevailing party for its legal costs. A proportionate alloca- tion in relation to the outcome is also possible. Both, court costs and the compensation for legal costs, are calculated based on tariffs depending on the value of the dispute.
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