Answer ... Yes, both preliminary and permanent injunctions are available.

In preliminary injunction proceedings, any person may request the court to order:

• measures to secure evidence, to preserve the existing state of affairs or to provisionally enforce claims for injunctive relief and remedies;
• a precise description to be made of:
• • the allegedly unlawful processes used;
  • the allegedly unlawful products manufactured; and
  • the means used to manufacture them; or
• the seizure of these objects.

If trade secrets are involved, the court will take the necessary measures to safeguard them.

Answer ... A permanent injunction is one of the typical remedies granted by the Federal Patent Court. The party seeking an injunction need not show irreparable harm or another legitimate interest. In preliminary injunction proceedings, it is sufficient for the rights holder to make a prima facie case of infringement (the ‘more likely than not’ standard). For a permanent injunction, the standard is beyond reasonable doubt.

Answer ... Yes, damages are available in a patent infringement suit. Similar to common tort actions, monetary remedies in patent actions are assessed on the basis that the claimant must be placed in the position it would have been in if no infringement had occurred. In addition, the court can order the production of a defendant’s accounting documents and information in order to help determine the extent of damages caused by the infringing activities.

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

• compensation for losses;
• reasonable royalty;
• lost profits;
• unjust enrichment; and
• reasonable legal expenses, including costs associated with combating the infringement in the minds of the consuming public.

In more detail, the claimant can request one of the following:

• compensation for the pecuniary losses incurred due to the infringement;
• payment of the infringer’s profits; or
• payment for any unjust enrichment by the infringer due to the infringement (e.g., a reasonable royalty).

The claimant can also seek damages for losses arising from the infringement. These losses may include:

• legal expenses incurred before filing suit;
• expenses directed at mitigating damages – for example, advertising expenses for minimising confusion among consumers; and
• related losses caused by the infringement, such as the sale of ancillary products or services.

Generally, the quantum of monetary remedies is assessed at a later stage from liability. The damages are awarded only after the decision regarding infringement is made final. Appealing the decisions tolls the need to pay damages. The basis for the calculation of damages is known as the ‘indivisible unit offered in trade’, which refers to the entire product as offered to the consumer.

Answer ... Preliminary injunction proceedings are summary proceedings, which means that shorter deadlines and a reduced level of proof (prima facie standard) apply. A permanent injunction requires having made a case of infringement beyond reasonable doubt.

Answer ... No, it is not possible to increase or multiply damages due to a party’s actions, as punitive or exemplary damages are not available. In addition, foreign awards of punitive damages are in principle unenforceable in Switzerland. However, if a criminal complaint for counterfeiting is filed (a separate action from a civil infringement action), the defendant(s) can be found criminally liable and subject to the payment of fines and/or time in prison (up to five years).

Answer ... Generally speaking, sanctions are not available. Even sanctions for delaying proceedings are uncommon, as it is almost impossible to do so.

Answer ... No sanctions are available in civil proceedings before the Federal Patent Court.

Nevertheless, the rights holder may also file a separate criminal complaint for the infringement. However, in the criminal proceedings, the patent holder cannot recover any financial losses. A conviction may result in monetary penalties and/or incarceration for up to five years, provided that it is proven that the infringer is in the business of counterfeiting.

Answer ... Yes, it can obtain reasonable attorneys’ fees.

Answer ... The fees awarded to a successful claimant must be shown to be reasonable and related to the infringement action. They may include fees incurred before the filing of the infringement action.