The Swiss Federal Patent Court: an appraisal of its first year

It's sometimes easy to forget Switzerland, since that lovely mountainous land -- though surrounded on all sides by the European Union -- is not part of it. When it comes to patent law, Switzerland has a significance that greatly exceeds its size. However, significance and influence are two quite different things and, because most of Europe is not particularly familiar with Swiss case law involving patent enforcement, that country's capacity to influence thought is diminished. This is a sad loss at a time when, within the European Union, even jurisdictions as insular as common-law-based England and Wales are increasingly looking beyond their own case law in patent matters. To make matters worse, the Swiss have been experimenting with a new system for patent litigation, and no experiment is worth conducting unless its results can be collated, analysed and evaluated.

But now for the good news. "Swiss Patent Jurisprudence 2012", an article by Cyrill P. Rigamonti (University of Bern; University of Bern) which is published in the Journal of Intellectual Property, Information Technology and E-Commerce Law, Vol. 4, p. 53, 2013, provides some interesting and potentially valuable guidance for readers on how the Swiss sue on their patents.  According to the abstract:

"The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since January 1, 2012. This article reviews and contextualizes the most important patent cases published in 2012 by the Swiss Federal Patent Court and the Swiss Federal Supreme Court. More specifically, the article covers cases on issues such as the evidentiary status of party expert opinions, the formal requirements for requests for injunctive relief, the infringement and non-obviousness tests employed by the Swiss Federal Patent Court, the use of reports and statements from technical judges in lieu of expert opinions, and the procedural devices for the pre-trial taking of evidence, in particular the new patent-specific device of precise description. 

The author suggests that designing the Federal Patent Court to include technically trained judges may lead to a more automatic adoption of the practices and case law of the European Patent Office. The article concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe".

If you want to know more, the good news is that you can download the full article via SSRN by clicking here.