Swiss Cantonal Court Clarifies The Scope Of Exclusive Jurisdiction For IP-Related Disputes

Not every license dispute falls within the competence of the sole cantonal instance

In a recent decision, the Aargau Higher Court has provided important guidance on the scope of Article 5(1)(a) of the Swiss Civil Procedure Code (CPC), which governs the exclusive subject-matter jurisdiction of the sole cantonal instance for intellectual property disputes (decision of the Higher Court of Aargau of 15 January 2026, ZVE.2025.25).

Under Article 5(1) CPC, the cantons must designate a sole cantonal instance with exclusive subject-matter jurisdiction over certain categories of disputes, including disputes relating to intellectual property rights. In many cantons, this function is performed by the commercial court or a specialized chamber of the higher cantonal court. The purpose of the provision is to concentrate expertise, ensure consistent decision-making and enable technically and legally complex IP disputes to be heard by judges with specialized experience.

The above-mentioned decision is particularly noteworthy because it clarifies two questions that have long been debated in legal writing and cantonal case law: (i) whether the exclusive jurisdiction depends on the amount in dispute, and (ii) whether every dispute arising out of an IP license agreement automatically qualifies as an IP dispute.

Background

The plaintiff brought an action before the district court, seeking payment of outstanding license fees under a software license agreement. Upon appeal, the Aargau Higher Court was called upon to assess whether the lower district court had subject-matter jurisdiction to hear the case or not.

No minimum amount in dispute

The Aargau Higher Court confirmed that Article 5(1)(a) CPC does not provide for a minimum amount in dispute. Accordingly, where a case qualifies as a dispute relating to intellectual property within the meaning of that provision, it falls within the exclusive jurisdiction of the sole cantonal court regardless of the value of the claim.

The decision explicitly addresses the view expressed by certain legal scholars that the absence of a general minimum amount in dispute requirement under Article 5(1)(a) CPC is problematic, since it deprives claimants of the procedural benefits of the simplified procedure, which is only available to lower district courts and not available before the sole cantonal instance under Article 5 CPC (Article 243(3) CPC), even where the amount in dispute is comparatively small. In contrast, the Court rejected this view and held that the legislature deliberately omitted a value threshold for IP disputes in Article 5(1)(a) CPC. While introducing such a threshold might be desirable as a matter of court policy (to allow fast-tracking smaller amount disputes before lower district courts), it is reserved for the legislature, rather than the courts, to amend the law accordingly.

A «license agreement» alone is not enough

The Court further drew an important distinction between disputes concerning intellectual property rights and ordinary contractual payment disputes.

It held that Article 5(1)(a) CPC does not establish blanket subject-matter jurisdiction for every claim arising from a license agreement, even when the underlying intellectual property right requires no legal examination in the dispute. What matters instead is whether the dispute concerns that intellectual property right or not.

Exclusive subject-matter jurisdiction under Article 5(1)(a) CPC only exists where the litigation in connection with a license concerns the respective intellectual property right, whether directly, as a preliminary question, or by way of objection against this intellectual property right. In other words, the court must be required to examine issues relating to the licensed intellectual property right. For example, where a licensee refuses to pay royalty fees on the ground that the licensed patent is invalid, the dispute necessarily requires an assessment of the respective intellectual property right itself and therefore falls within Article 5(1)(a) CPC. This is not the case, in particular, where, in a contractual claim, the licensee does not allege any lack of performance or defective performance of the license or assignment agreements specifically relating to intellectual property rights. Hence, a straightforward claim for unpaid license fees does not become an IP dispute merely because it originates from a license agreement. If the defendant only argues, for example, that payment is not yet due, or payment cannot currently be made due to the licensee’s liquidity constraints, the dispute remains an ordinary contractual claim and falls outside the scope of Article 5(1)(a) CPC.

In reaching this conclusion, the Court expressly departed from parts of the existing cantonal case law and academic commentaries, which had advocated a broader interpretation under which literally all disputes arising from license agreements should automatically fall within the exclusive subject-matter jurisdiction of the sole cantonal court.

Key Take Aways: What does this mean for businesses?

The decision is likely to have practical implications well beyond traditional IP litigation.

1. Firstly, companies should no longer assume that every dispute under a patent, trademark, copyright or software license agreement belongs before the sole cantonal (specialized) court. In view of the diverging decisions and opinions cited in the decision of the Aargau Higher Court, there is now a certain degree of uncertainty as to where such a dispute must be initiated. Should the recent Aargau case be repeatedly confirmed by Swiss jurisprudence and become an established practice, then jurisdiction will in the future depend more on the actual issue in dispute. A simple debt collection action for unpaid license fees may therefore proceed before the ordinary district courts (also in an accelerated, more simple procedure), while disputes requiring an assessment of the licensed IP right remain within the exclusive jurisdiction of the sole cantonal court.
2. Secondly, the decision may be particularly relevant for businesses operating in areas involving non-traditional intangible assets. Modern commercial license agreements increasingly concern know-how, confidential business information, proprietary methodologies, databases, market data, financial data feeds, AI training datasets or personal data. Many of these assets are commercially valuable but do not necessarily constitute statutory intellectual property rights. It may be inferred from the reasoning of the Aargau Higher Court that disputes concerning such agreements may not automatically benefit from the specialized jurisdiction under Article 5(1)(a) CPC. Since such disputes concern assets not protected by intellectual property rights, they may instead fall within the competence of the ordinary civil courts.
3. For businesses, this increases the importance of carefully considering dispute resolution mechanisms when negotiating license agreements. Where specialist judicial expertise is commercially desirable, parties should thus thoroughly assess their jurisdiction and dispute resolution clauses. Under the current Swiss legal system, parties cannot pre-agree on the subject-matter jurisdiction. It might thus be envisaged to resort to a mediation or arbitration framework rather than relying on state courts, in order to clearly establish competence and prevent disputes over jurisdiction from arising in the first place. Moreover, this can help secure decisionmakers with specialized subject-matter expertise (e.g., the ITDR-institution in Switzerland for technology/data-based disputes or other similar, more suitable arbitration institutions).
4. Finally, the decision also highlights that litigation strategy - including the way claims and defenses are formulated - may influence whether a dispute is characterized as an IP dispute or an ordinary contractual claim. A careful legal analysis beforehand will be necessary. In particular, the tricky part for IPlitigation will be to predict how a defendant will react in a license contract dispute before court. Will he also challenge the underlying intellectual property at stake (and therefore make this a genuine IP-dispute subject to the sole cantonal instance jurisdiction) or will he remain within the mere contractual set of counterarguments (which would be treated before the lower district courts)?

Although the decision concerns procedural law rather than substantive intellectual property law, it provides clarification on the scope of Article 5(1)(a) CPC and is likely to become an important reference point for future licensing disputes in Switzerland.