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New court aims to cut through patent nonsense

Nestlé's Nespresso capsules are at the centre of a patent battle

(Keystone)

Switzerland’s Federal Patent Court, the only one in Europe to operate in four languages, including English, has just opened for business.

In creating the court, based in St Gallen since January 1, the authorities want to simplify and speed up the system not only for Swiss companies and foreign multinationals based in Switzerland, but also for companies based abroad.

It operates in Switzerland’s three official languages – German, French and Italian – but the language of proceedings is English.

“English is widely used because the majority of patents are applied for and explained in English,” Felix Addor, deputy director of the Swiss Federal Institute of Intellectual Property and one of the court’s architects, told swissinfo.ch.

The introduction of English should be of interest to foreign companies based in Switzerland – notably those from the United States – which would no longer have to turn to a translation when they receive a legal ruling.

“Switzerland has the most patents per inhabitant – but also in absolute figures it is third in the European Patent Organisation behind Germany and France. At a global level, it’s in the top ten,” Addor said.

“Because Switzerland’s industrial fabric is composed above all of small and medium-sized businesses – often very innovative – more patents are applied for here than elsewhere,” he said. “This set-up also results in several major lawsuits.”

Innovation

An innovation is protected by the European Patent Office (EPO) in every European market of the future product, not only in Switzerland.

Lawsuits on infringement of patents and their validity – in addition to disputes between various patents belonging to different holders – is a real legal jungle.

“Until now, a dispute in Switzerland would at the same time affect every country in which the patent was protected by the EPO,” Addor said.

“In the absence of a European Patent Court, holders would seek protection before the most competent courts, which until now would mean parties heading to Germany, the Netherlands or Britain to protect their invention in the first instance at least in the main European countries.”

It’s for this reason that Switzerland decided to harmonise the 26 cantonal procedures and make them more professional, creating a federal authority.

To the great relief of Fribourg lawyer Markus Jungo, who despairs of the slowness of the cantonal court.

“I’m dealing with a patent lawsuit and the judges aren’t specialists. They must have command over external technical expertise to be able to work, which makes the proceedings much too long and costly,” he told swissinfo.ch.

One example is that of the legal ping-pong over Nespresso capsules which has been going on for months between Nestlé and its rivals who are threatening its patent. It’s a complex case which crosses borders and involves a large cast (see related story).

Increased competition

In addition to the attraction of having English as the language of proceedings, the Federal Patent Court offers a harmonised proceeding to boost its competitiveness at a European level.

“In Germany, there are different proceedings depending on whether it’s an infringement of the patent or its validity, which contributes to a complex and disadvantageous situation both for those involved and for innovation,” Addor said.

The court employs two ordinary judges: the president Dieter Brändle, a former deputy judge at Zurich commercial court, and Tobias Bremi, a patent lawyer.

These two specialists are part of a network of some 30 deputy judges from all over Switzerland. A third of them are lawyers and two-thirds engineers, to cover the five areas concerned (chemistry, biotechnology, machine construction, physics and electrotechnology) as well as the various linguistic regions.

Large sums at stake

The operating expenses are reduced to a minimum because the deputy judges are paid by the day and travel from canton to canton, where they can set up office in one of the premises provided free of charge.

Unlike other federal courts, the patent court isn’t financed by the state but by the parties involved in the litigation and by patent holders.

The cabinet expects around 30 cases a year will be dealt with by the Federal Patent Court.

“That might seem small, but these cases are important – with large sums at stake, hundreds of pages of legal documents, each representing two weeks of work,” Brändle said.

Since January 1 a dozen cases have already been transmitted by the cantons to the Federal Patent Court. Brändle is hoping to attract many more.

Patents

A patent is a protective right granted by the federal government for a technical invention. Invention, in the legal sense, is a solution to a technical problem.

Inventions include products (for example heatable ski boots or chemical compounds such as aspirin) and processes (for example a process for freeze-drying coffee). If an invention is novel, non-obvious to a person skilled in the art and can be commercially applied it is patentable.

(Source: Federal Institute of Intellectual Property website)

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Trademarks

Technically, a trademark is a protected sign which distinguishes the products or services of one business from another.

Basically, any graphic representations can be used as trademarks under the law: For example, words (e.g. Victorinox), combinations of letters (e.g. ABB), combinations of numbers (e.g. 501), graphic images (e.g. the Swiss Federal Railways logo), three-dimensional forms (e.g. the Mercedes star), slogans (e.g. “Cats would buy Whiskas”), any combination of these elements, and a series of tones (acoustic trademarks, e.g. the Ricola jingle).

(Source: Federal Institute of Intellectual Property  website)

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Federal Patent Court

As the country’s court of first instance in matters dealing with patents, the Federal Patent Court rules on civil-law disputes concerning patents.

It rules, for instance, on litigation over patent validity as well as patent infringement. 

An appeal against the decisions of the Federal Patent Court can be lodged with the Federal Supreme Court.

(Source: Federal Patent Court)

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(Adapted from French by Thomas Stephens), swissinfo.ch

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