Intellectual Property in particular Patent Litigation in Switzerland

Intellectual Property, in particular Patent Litigation in Switzerland Dr. iur. Andri Hess April 22, 2013 |

Historic Framework — Switzerland is a federation of 26 cantons — competence to legislate in the field of substantive civil law (including IP) lies with federation, while competence to organize judiciary and establish procedural law lied with the cantons — federal law requires cantons to denominate 1 court for intellectual property matters and provides for the possibility to appeal cantonal judgments to the Federal Supreme Court — only two court levels: Federal Supreme Court Cantonal court in Zurich; CCP Zurich Cantonal court in Berne; CCP Berne Cantonal court in Geneva; CCP Geneva … April 22, 2013 | 2

Evident Shortcomings, Remedied — 26 different procedural laws constitution amended in 2000; power to legislate in the field of civil procedure transferred to federal level; Federal Code of Civil Procedure enacted 1|1|2011 — many cantonal courts did not receive enough patent cases to build up experience establishment of Federal Patent Court; Federal Patent Court became operative 1|1|2012 April 22, 2013 | 3

Federal Patent Court – Jurisdiction — exclusive jurisdiction over all matters that involve questions of substantive patent law, in particular infringement and validity — concurrent jurisdiction with cantonal courts in all other civil actions associated with patents — first instance civil court, not criminal court and not court of appeals against decisions of the Swiss patent office — Federal Patent Court judgments can be appealed to the Federal Supreme Court — pro memoria: — Switzerland is a member of the European Patent Organisation | European Patent Convention … — … but not a member of the EU and the EEC — development in EU regarding a European patent with unitary effect and a unified patent court will not affect the Swiss system April 22, 2013 | 4

Federal Patent Court – Distinctive Features — Judges — 38 judges, the majority with a technical background — only 2 permanent judges, the others work in private practice or in the industry and are called only on case-by-case basis — strict conflict of interest management required — Deciding bodies — 3 to 7 judges, always including technically trained judges — no need for external experts because technical knowledge is available within the deciding body April 22, 2013 | 5

Federal Patent Court – Distinctive Features — Financing — not trough general state budget … — … but only through court fees and contributions from the Swiss patent office taken from the patent fees annually collected by the office — court fees: capped at CHF 150, 000; e. g. CHF 20, 000– 66, 000 for value in dispute of CHF 1 Mio — Languages — all 4 national languages (German, French, Italian, Rumantsch) may be used in parallel — in addition English if all parties agree — Court aims at duration of proceedings of 1 year; more realistic is 1½ years April 22, 2013 | 6

Thank you for your attention. Dr. Andri Hess andri. hess@homburger. ch T +41 43 222 10 00 Homburger AG Prime Tower Hardstrasse 201 | CH-8005 Zürich Postfach 314 | CH-8037 Zürich www. homburger. ch |