Answer ... When a patented product, process/method, substance or composition not yet used for a specific purpose, or a process applied in a new field, is placed on the Swiss market whose technical features are fully reflected in at least one claim of the patent or with application of the doctrine of equivalents to each and every element of the patent claim, a case of patent infringement can be made, provided that the patent is otherwise valid and enforceable. Indirect or contributory patent infringement is recognised in Switzerland and requires:

• an act of direct patent infringement by a third party; plus
• a causal link between the actions of the third party and the infringement.

Anyone that abets, participates in, aids or facilitates patent infringement may be held liable under civil and criminal law (see Articles 66(a)–(c) of the Federal Act on Patents for Inventions). Therefore, anyone that induces or contributes to a patent infringement is also potentially liable. This includes those that supply (or offer to supply) elements that are adapted for use in the invention. It is irrelevant where these suppliers are. Even a foreign supplier of elements brought into Switzerland (where the product is made and/or assembled) can equally contribute to patent infringement and therefore be liable. On the other hand, the elements made by a Swiss manufacturer which contributes to patent infringement that are shipped outside of Switzerland do not make a case of contributory infringement.

Answer ... The doctrine of equivalents applies in extending the scope of a claim beyond the strict literal meaning of the words of the claim. Consequently, any element deemed an equivalent to an element specified in that claim may substitute for that element in determining infringement. Therefore, the scope of protection conferred by a patent claim is not limited to the identical use of the features of the construed claim by the defendant’s product or process, but also extends to equivalent elements if the following conditions are met:

• The equivalent element has the same effect;
• It is obvious to the skilled person that it has the same effect; and
• The skilled person would have considered the equivalent element as having the same value.

Answer ... Generally, a party cannot be held liable if the patent infringement takes place outside of Switzerland, although Swiss companies may be subject to the Federal Patent Court for a determination of infringement in other countries. In such case, the court has jurisdiction to grant extraterritorial injunctions against defendants domiciled in Switzerland.

Answer ... There are none before the Federal Patent Court. Of course, if a case of counterfeiting can be made out, this egregious conduct can be punished with incarceration for up to 5 years

Answer ... Any rights holder or exclusive licensee of at least one claim of a granted Swiss patent.

Answer ... An infringement action should be brought soon after learning of the infringing activity in order to avoid providing a defence of reliance for failure to file the action. In any case, any actions by the claimant should be avoided that could be used by the infringer as a defence, such as that the claimant gave the defendant a reasonable basis to believe that the patent would not be enforced against it.

Answer ... The claimant must provide prima facie evidence of infringement in order to initiate a suit.

Answer ... A patent infringement action may be brought only in the Federal Patent Court.

Answer ... For civil actions, there are no other venues other than the Federal Patent Court. For criminal actions, there are many possible venues, as the criminal courts of each canton have jurisdiction over actions which take place in their jurisdiction.

Answer ... The panel of trained judges is the fact finder in an infringement action. The judges of the Federal Patent Court include at least one with a technical background and one with legal background.

Answer ... No, for civil actions, the fact finder does not change based on venue, as there is only one venue: the Federal Patent Court.

Answer ... The complaint, called a statement of claim, is filed by the claimant. A statement of defence may be filed by the defendant; and optionally, a counterclaim is filed. The Federal Patent Court calls the parties to an instruction hearing where the parties explain their general positions, which may be used by the court to mediate a settlement. If the case is not settled, a second volley of written briefs are exchanged and the lead technical judge issues an expert opinion for comment. The parties are then summoned to the main hearing, after which the court will issue its decision. If the decision is that there was an infringement, the parties are allowed to file their comments as to damages, which the court will consider in determining the appropriate relief, such as monetary relief, which should be granted.

If a defendant in a patent infringement suit defends on the grounds that the Swiss patent is null and void, the court may allow it an appropriate time limit to file a nullity action. If the patent has not been examined with regard to novelty and inventive step, and if the court has any doubt as to the validity of the patent, or if the person under investigation has provided prima facie evidence that the defence of nullity of the patent appears justified, the court may allow the injured party an appropriate period within which to file a declaratory judgment action that the patent is valid.

Where the action is timely filed, any criminal proceedings will be suspended until a final decision on the action has been issued. The statute of limitations for prosecution is suspended during this time.

Answer ... The remedies available for patent infringement include:

• a permanent injunction;
• monetary remedies (compensation for losses, reasonable royalty, lost profits, unjust enrichment, reasonable legal expenses);
• delivering up or destruction of the infringing goods;
• publication of the decision;
• recall orders; or
• a declaration of infringement or validity.

In Switzerland, a permanent injunction is the usual remedy against patent infringement. Unlike in the United States, public policy considerations are not taken into account in the determination as to whether to grant a permanent injunction. It is a remedy that is typically granted at the request of the claimant after infringement is determined by the court. Interestingly, non-practising entities are not handicapped in Switzerland.

Answer ... Appeals from the Federal Patent Court are heard by the Federal Supreme Court, which reviews the case as a matter of law. The facts are accepted by the Federal Supreme Court as established by the Federal Patent Court.