Switzerland
Answer ... Anything that would make a patent invalid against the defendant will make a patent unenforceable against it. The reason for unenforceability could be that the patent has expired or is invalid; or that the defendant can claim a defence such as exhaustion, experimental or use in clinical testing, or a prior user right. If the claimant knows that its patent as a whole is invalid for any reason and it is likely that the Federal Patent Court will learn of this flaw in litigation, this will make the patent unenforceable against all third parties.
A patent is also not enforceable if it pertains to:
- acts undertaken within the private sphere for non-commercial purposes;
- acts undertaken for research or experimental purposes in order to learn about the subject matter of the invention, including its uses – in particular, scientific research concerning the subject matter of the invention is permitted;
- acts necessary to obtain marketing authorisation for a medicinal product in Switzerland or in countries with equivalent medicinal product control;
- the use of the invention for teaching purposes at educational institutions;
- the use of biological material for the purpose of the production or discovery and development of a plant variety;
- biological material that is discovered in the field of agriculture due to chance, or that is technically unavoidable;
- acts undertaken in the course of medical activities concerning individual persons or animals and involving medicinal products – in particular, the prescription, dispensing or use of medicinal products by legally authorised persons; or
- the direct individual preparation of medicinal products in pharmacies in accordance with a doctor’s prescription or acts concerning medicinal products prepared in this way.
Agreements which seek to limit or revoke the exclusions outlined above are null and void.
Switzerland
Answer ... There are none. Unlike in the United States, a patent cannot be deemed unenforceable for inequitable conduct of the patent holder or his exclusive licensee.
