SWITZERLAND Trends and Developments Contributed by: Simon Holzer, Ulrike Ciesla, Louisa Galbraith and Michael Ritscher, MLL Legal
MLL Legal Schiffbaustrasse 2 P.O. Box
8031 Zürich Switzerland
Tel: +41 585 520 800 Fax: +41 585 520 801 Email: zurich@mll-legal.com Web: mll-legal.com
Recent Cases in Swiss Patent Litigation According to the statistics of the cases han- dled by the Swiss Federal Patent Court, 2023 was not a successful year for patent owners in Swiss patent litigation proceedings. The year 2024 was much more favourable for patentees. Particularly noticeable are the cases in which the Swiss Federal Patent Court upheld patent protection for sorafenib tosylate contained in Bayer’s NEXAVAR® and for apixaban in BMS’ ELIQUIS®. These patents have been the subject of litigation in many European jurisdictions, and not all national courts have reached the same conclusions. Furthermore, the Federal Patent Court has issued some important case law on procedural matters in the past year. Especially in PI proceedings, some changes in practice have occurred, as the court intends to conduct the proceedings in a stricter, quicker and more efficient manner. Good preparation, which has always been essential for the front-loaded patent litigation system in Swit- zerland, will become even more important. Below, the authors discuss in more detail four selected judgments that they believe are the highlights of Swiss patent litigation from 2024. For the sake of transparency, the authors
would like to point out that MLL Legal has been involved and represented the patentees in these proceedings. New practice in Swiss PI proceedings (S2024_008, court order of 29 October 2024) Previously, inter partes PI proceedings in Swit- zerland were mini-trials in which the defendant could defend against infringement claims with arguments of non-infringement and the plea of invalidity of the asserted patent. Conversely, the plaintiff could defend the patent in a limited form with one or more auxiliary requests when filing the complaint or responding to the answer to the complaint. This has changed. In October 2024, the Federal Patent Court changed its practice and since then the patent in suit can only be asserted in one single version in PI proceedings. In PI proceedings S2024_008, the Federal Pat- ent Court requested the plaintiff – contrary to the court’s previous practice – to assert the patent, ie, the basic patent of the SPC in suit, in only one version after filing the complaint. In order to prevent such a procedural restriction, the plaintiff argued that a defence including one
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