In a recent decision (case no. 4A_443/2012) the Swiss Federal Supreme Court had to deal with a dispute between the German Robert Bosch GmbH, which filed suit against the Swiss Federal Confederation based on the Swiss portion of EP 0 741 373. The decision exclusively focuses on the question whether the Swiss Federal Patent Court has jurisdiction to decide Robert Bosch’s injunction and damages claims. The Swiss Federal Supreme Court confirmed that the new Swiss Federal Patent Court is exclusively competent to decide Robert Bosch’s permanent injunction against the Swiss Federal Confederation. However, the Federal Supreme Court stated that the Federal Patent Court is not competent to decid [...]

Ensuring the independence and integrity of its judges is crucial for every court system.

After its first year of existence, the Swiss Federal Patent Court has slightly amended its Guidelines on Independence for the part-time judges of the Federal Patent Court. However, those guidelines have proven to be very useful in practice.

It is interesting to compare these guidelines with Article 7 of the planned Statute of the Unified Patent Court, which also concerns the impartiality of the judges of the new Unified Patent Court.

Since both court systems are based on a pool of judges, including part-time judges, both systems have to deal with the possible conflicts of interest of those judges.

To ens [...]

In a recent decision the new Swiss Federal Patent Court confirmed that it adheres to the case law with regard of the wording of prayers for relief in Swiss patent proceedings. Unlike in other jurisdictions, plaintiffs in Swiss patent proceedings must be very careful if they just adopt the wording from their patent claims in their prayers for relief. Prayers for relief in Swiss patent proceedings have to orientate themselves to the patent claims but must clearly describe the infringement problem. If the patentee adopts the wording of the patent claims the court is likely to dismiss the case because the infringing object or actions do not seem to be described specifically enough.

The Swiss Cla [...]

In a decision dated 14 June 2012, the Swiss Federal Patent Court granted a patent holder’s request for preliminary taking of evidence by means of the creation of a precise description of an allegedly infringing process.

The Patent Court ordered that the description shall be carried out at defendant’s premises by a technically trained judge assisted by a court clerk and in presence of defendant’s representatives as well as applicant’s attorney and patent attorney. To protect defendant’s business and manufacturing secrets, the Patent Court excluded the applicant itself from participating at the preliminary taking of evidence and prohibited applicant’s attorney and patent attorney from comm [...]

The numerus clausus of legally permissible pieces of evidence in the new Swiss Civil Procedure Code (CPC) – unlike in many other codes of civil procedure – does not provide for private expert opinions. Only court-appointed expert opinions are foreseen in the CPC. The question therefore arises, how the new Swiss Patent Court should deal with court-appointed expert opinions requested by a foreign court (mostly, they originate from foreign legal disputes concerning the same subject matter) submitted by the parties: Are such expert opinions merely allegations of the parties, though thoroughly substantiated ones, or can they be accepted as valid pieces of evidence under certain conditions?

In [...]

The Swiss Federal Supreme Court rendered its first decision regarding the new pre-trial taking of evidence proceeding in Switzerland’s new Code of Civil Procedure Law (ZPO) and in the Swiss Patent Act (PatG). More than a few patent practitioners feared that the Federal Supreme Court would confirm the challenged decision of the Court of Commerce of the Canton of Aargau. This would have been the end of pre-trial taking of evidence in patent matters. The Federal Supreme Court rendered a judgement of Solomon.

Article 158 of the new Code of Civil Procedure (in force since 1 January 2011) and article 77 of the Swiss Patent Act both provide pre-trial discovery measures.

While Article 158 ZPO allows [...]