NATIONAL JUDGES' PRESENTATIONS
CH Switzerland
CH Switzerland - Tobias BREMI - Federal Patent Court - Developments in patent jurisdiction in Switzerland – the establishment of the Swiss Federal Patent Court
Ladies and gentlemen,
It is a great honour, especially for a judicial greenhorn such as me, to stand here before you and address you at this, my very first judges' symposium.
Today, I propose to present you with a brief report on new and, in my opinion, pioneering developments in Swiss patent jurisdiction.
As most of you already know, Switzerland is a federation of 26 relatively autonomous cantons. The state is based on the principle of federalism, meaning that the Federal Government may only regulate matters explicitly specified in the constitution as falling within its purview; everything else is regulated independently by the cantons. This also applies very largely to legislation. Thus, the cantons are responsible for how the courts are organised and, for the present, also for how the law of civil procedure is regulated.
What this means for patent litigation is that, at the moment, there is a court with jurisdiction over patent matters in each of the 26 cantons, with each court applying its own law of civil procedure for patent litigation.
With patent case numbers averaging only 30 to 40 a year, many of the cantonal courts rarely have a chance to handle patent litigation and thus never manage to develop their expertise. What is more, sixty per cent of all patent litigation in Switzerland takes place before the four commercial courts in Aarau, Berne, St. Gallen and Zurich.
Furthermore, there is a general reliance in the courts on the help of certified experts as a consequence of the shortage of technically qualified judges on the panels and in particular given the courts' responsibility for assessing both patent infringement and patent validity. This reliance is not exactly conducive to the efficient conduct of proceedings and the consistency of case law.
This issue has long been the subject of criticism, especially considering Switzerland's position as one of the top patenting countries.
The problem was in fact recognised in the last century, and calls were made as far back as the 1940s for the establishment of a Federal Patent Court and a specialised chamber for patent matters with technically qualified judges within the Federal Supreme Court, the highest national body. This failed at the time for constitutional reasons, because the then federal constitution recognised no federal judicial authorities other than the Federal Supreme Court and no federal code of civil procedure.
In the course of a reform of the justice system that was approved in a referendum in 2000, federal legislative competence was extended to include civil procedural law. Thus, following the conclusion of a series of protracted and difficult political processes, a federal law of civil procedure will finally enter into force on 1 January 2011 (Art. 121 BV [Swiss Federal Constitution]). The Federal Government has further been empowered to provide for additional federal judicial authorities (Art. 191a BV) with the consequence that, in addition to the Federal Supreme Court, there are now two additional federal authorities, namely a Federal Criminal Court and a Federal Administrative Court.
With the constitutional obstacles out of the way, a parliamentary initiative was launched in 2005 to establish a Federal Patent Court. A draft bill was drawn up by the Federal Council and voted on by the Swiss Parliament on 20 March 2009. The institutional and organisational provisions of the Swiss Federal Patent Court Act (PatGG) entered into force on 1 March 2010. At the same time, the judges' posts were advertised. Finally, on 16 June 2010, the Federal Assembly appointed two full-time judges as members of the court's board of directors: Dieter Brändle, who will be familiar to many of you, as legally qualified President; and myself as a technically qualified judge. In addition, around 20 technically qualified and 10 legally qualified specialised judges were appointed as part-time members to be called upon on a case-by-case basis.
The Federal Patent Court now being established for Switzerland will have sole jurisdiction over actions relating to patent validity and infringement and for the granting of licences. Its jurisdiction will also extend to ordering preliminary injunctions and enforcing its own decisions (Art. 26 PatGG) as well as to hearing other civil actions directly linked to patents, in particular actions concerning licensing agreements or entitlement to patents.
The court will be composed of three or five members. Judges with different backgrounds will be selected on the basis of the case in question. In the five-member composition, for instance, there will be only two technically qualified judges for cases of a chiefly legal nature, whereas there will be three judges with a technical background for more technical cases.
Switzerland, therefore, will soon have just one court of first instance with national jurisdiction for patent litigation, namely the Federal Patent Court, and there will be only one review body - the Federal Supreme Court - for judgments handed down by the Federal Patent Court. The judicial review process will thus be short, making it possible to reach final judgments in a timely fashion.
At present, Dieter Brändle and I are busy with the organisational tasks involved in getting this brand-new court off the ground. The entire panel of judges has to be constituted, court administration has to be organised, infrastructure has to be put in place, decisions have to be made on how and under what conditions the cases currently pending in the various cantonal courts will be transferred to the Federal Patent Court, rules have to be drafted, and so on. All in all, an exciting and unique enterprise!
The new court will have its seat in St. Gallen, alongside the Federal Administrative Court. While the decision as to when the Federal Patent Court actually commences activities ultimately lies with the Federal Council, our assumption is that this will be mid-2011 at the earliest, but possibly not until 1 January 2012.
We are therefore looking forward to 2012, when we will be in a position to give you an initial report on the actual activities of the Swiss Federal Patent Court.
Thank you for your attention.