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Switzerland’s SPC granting practice drawn into a future mess?

In the aftermath of the CJEU decisions Eli Lilly/Medeva and Actavis/Georgetown II, the Swiss Federal Institute of Intellectual Property proposes changes in its SPC granting practice.

One hot topic in connection with the granting of SPCs concerns the question on how to define whether a product is protected by a basic patent (Art. 3 (a) SPC Regulation (EC) No. 469/2009). This discussion became particularly relevant with respect to combination products with multiple active ingredients. The national courts in the EU member states basically have applied two different approaches: the so called “infringement test” and the “disclosure test”.

In Switzerland SPCs for combination products have [...]

Amended Guidelines on Independence of the Swiss Federal Patent Court became effective on 1 January 2015 – An inspiring model for the UPC?

As posted here the Swiss Federal Patent Court had to amend its Guidelines on Independence after the Swiss Federal Supreme Court had lifted a decision of the Federal Patent Court concerning the recusal of one of its non-permanent judges on 27 August 2013 in a case concerning the Nespresso coffee capsules.

The revised Guidelines on Independence became effective on 1 January 2015.

The revised Guidelines are not only interesting for the judges and the parties that are involved in proceedings before the Swiss Federal Patent Court but also for those who have to give thought to the implementation of article 7 of the Statute of the Unified Patent Court for the judges pool of the Unified Patent Cour [...]

“Self-adhesive tape” – You better limit your Swiss patents in good time

The juxtapositon of patent limitations in national nullity proceedings and before national patent offices on the one hand and according to article 105a EPC on the other hand is a hotly debated issue not only in Switzerland.

In a recently published decision of 2 June 2014 (4A_541/2013), the Swiss Federal Supreme Court had to decide – inter alia – whether the limitation of the European Patent 1 508 436 according to article 105a EPC which only took place after the revocation of the Swiss portion of the patent by the Federal Patent Court must still be taken into account.

In brief, claimant requested the nullity of EP 1 508 436 before the Swiss Federal Patent Court.

The patent relates [...]

Facts and figures about Swiss patent litigation: Press release concerning the annual report 2013 of the Swiss Federal Patent Court

Earlier today, the Swiss Federal Courts (including the Swiss Federal Patent Court) published a joint press release concerning their annual reports 2013.

The number of infringement and/or validity cases submitted to the Federal Patent Court in its second year of operation corresponds to the expectations. In total, 22 ordinary proceedings on the merits and 11 summary proceedings were brought before the Court (this is an increase of almost 100% compared to the 17 new cases that had been filed with the Federal Patent Court in 2012).

The Court dealt with 23 cases in 2013. This means that the ratio between output and input is roughly 69%.

In its second business year, the Federal Patent Cour [...]

The wording of Prayers for Relief: A complicated Swiss affair

The wording of prayers for relief in patent infringement proceedings remains a hotly debated issue in Switzerland. In a landmark decision dated 2004 (BGE 131 III 70) the Swiss Federal Supreme Court ruled that the patent infringing goods or procedures had to be exactly described in the prayers of relief of a cease-and-desist order. Since then, it has not been sufficient to simply repeat the wording of the claim of the allegedly infringed patent. In particular, this holds true if the interpretation of the claim features is highly controversial between the parties. The authorities that are in charge of the enforcement of an injunction cannot be expected to reassess the meaning of the patent cla [...]

Recusal of Non-Permanent Judges of the Swiss Federal Patent Court compared to Article 7 of the Statute of the Unified Patent Court

In a recent decision (case no. 4A_142/2013), the Swiss Federal Supreme Court had to decide whether one of the non-permanent judges of the Swiss Federal Patent Court, a Swiss patent attorney, was obliged to recuse himself due to activities of one of his colleagues in his patent law firm in connection with a trademark matter of a company affiliated with one of the parties of the pertinent patent dispute. The Swiss Federal Supreme Court took the opportunity and established a high standard to ensure the independence and integrity of the non-permanent judges of the Swiss Federal Patent Court.

The case at hand concerned the conflict between the Swiss retailer Denner and the patentee of the Nespres [...]

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