Federal Act on the Federal Patent Court

¹The Fed­er­al Pat­ent Court is the pat­ent court of first in­stance of the Swiss Con­fed­er­a­tion.

²It is­sues its de­cisions as a lower court of the Fed­er­al Su­preme Court.

The Fed­er­al Pat­ent Court is in­de­pend­ent in its ad­ju­dic­a­tion and is bound only by the law.

¹The Fed­er­al Su­preme Court ex­er­cises su­per­vi­sion over the ad­min­is­tra­tion of the Fed­er­al Pat­ent Court.

²The Fed­er­al As­sembly ex­er­cises ul­ti­mate su­per­vi­sion over the Fed­er­al Pat­ent Court.

³The Fed­er­al Pat­ent Court shall sub­mit its an­nu­al draft budget, an­nu­al ac­counts and an­nu­al re­port to the Fed­er­al Su­preme Court for the at­ten­tion of the Fed­er­al As­sembly.

The Fed­er­al Pat­ent Court is fin­anced by court fees and con­tri­bu­tions from the Swiss Fed­er­al In­sti­tute of In­tel­lec­tu­al Prop­erty (IPI) taken from the pat­ent fees an­nu­ally col­lec­ted by the IPI.

¹The Fed­er­al Ad­min­is­trat­ive Court shall make avail­able its in­fra­struc­ture to the Fed­er­al Pat­ent Court at cost and provide the staff re­quired to provide ad­min­is­trat­ive ser­vices to the Fed­er­al Pat­ent Court.

²In its work for the Fed­er­al Pat­ent Court, the ad­min­is­trat­ive staff re­ports to the Ad­min­is­trat­ive Com­mit­tee¹.

¹The use of the elec­tron­ic in­fra­struc­ture of the Fed­er­al Ad­min­is­trat­ive Court by the Fed­er­al Pat­ent Court for its ad­min­is­trat­ive activ­it­ies is gov­erned mu­tatis mutandis by Art­icles 57i-57q of the Gov­ern­ment and Ad­min­is­tra­tion Or­gan­isa­tion Act of 21 March 1997².

²The Fed­er­al Pat­ent Court shall is­sue the im­ple­ment­ing pro­vi­sions.

The Fed­er­al Pat­ent Court sits at the seat of the Fed­er­al Ad­min­is­trat­ive Court. This loc­a­tion also serves as the place of em­ploy­ment of the per­man­ent judges, court clerks and the ad­min­is­trat­ive staff.

Where jus­ti­fied by the cir­cum­stances, the Fed­er­al Pat­ent Court may sit at an­oth­er loc­a­tion. The can­tons shall provide the re­quired in­fra­struc­ture free of charge.

¹The Fed­er­al Pat­ent Court is com­posed of judges with leg­al train­ing and judges with tech­nic­al train­ing. The judges must have proven know­ledge of pat­ent law.

²The Fed­er­al Pat­ent Court is com­posed of two per­man­ent judges and a suf­fi­cient num­ber of non-per­man­ent judges. The ma­jor­ity of non-per­man­ent judges must pos­sess tech­nic­al train­ing.

¹The judges are elec­ted by the Fed­er­al As­sembly.

²Per­sons who are eli­gible to vote on fed­er­al mat­ters are eli­gible for elec­tion.

³When elect­ing judges to serve in the Court, it shall be en­sured that tech­nic­al fields of ex­pert­ise and Switzer­land's of­fi­cial lan­guages are ap­pro­pri­ately rep­res­en­ted.

⁴Dur­ing the pre­par­at­ory phase for the elec­tion, the IPI as well as pro­fes­sion­al or­gan­isa­tions and in­ter­ested groups in­volved with pat­ents may be heard.

¹The judges of the Court may not be mem­bers of the Fed­er­al As­sembly, the Fed­er­al Coun­cil or a fed­er­al court.

²They may not en­gage in any activ­ity that im­pairs their abil­ity to ful­fil the du­ties of their of­fice, their in­de­pend­ence, or is in­jur­i­ous to the repu­ta­tion of the Court.

³They may not serve in any of­fi­cial ca­pa­city on be­half of a for­eign state.

⁴Per­man­ent judges may not act as pro­fes­sion­al rep­res­ent­at­ives of third parties be­fore the Court.

⁵Per­man­ent judges on a full time basis may not hold of­fice in a can­ton or en­gage in any oth­er gain­ful activ­ity. They may not be a mem­ber of the man­age­ment board, board of dir­ect­ors, ad­vis­ory board or serve as an aud­it­or of a com­mer­cial en­ter­prise.

In or­der to en­gage in gain­ful activ­it­ies out­side of the Court, per­man­ent judges on a part time basis must ob­tain au­thor­isa­tion from the Ad­min­is­trat­ive Com­mit­tee.

¹The fol­low­ing per­sons may not serve sim­ul­tan­eously as judges of the Fed­er­al Pat­ent Court where they are re­lated to serving Court mem­bers in the fol­low­ing ca­pa­cit­ies:

a.

spouses, re­gistered part­ners or do­mest­ic part­ners;

b.

spouses, re­gistered part­ners and do­mest­ic part­ners of sib­lings;

c.

re­l­at­ives in dir­ect lin­eage and re­l­at­ives in col­lat­er­al lin­eage up to and in­clud­ing the third de­gree;

d.

re­l­at­ives in-law in dir­ect lin­eage and re­l­at­ives in-law in col­lat­er­al lin­eage up to and in­clud­ing the third de­gree;

²The pro­vi­sion of para­graph 1 let­ter d ap­plies ac­cord­ingly to do­mest­ic part­ner­ships.

¹The term of of­fice of judges amounts to six years. Re-elec­tion is per­mit­ted.

²Judges leave of­fice at the end of the year in which they reach 68 years of age.¹

³Of­fices va­cated in this man­ner shall be filled for the re­main­ing term of of­fice.

The elect­or­al au­thor­it­ies may re­move a judge from of­fice be­fore he or she has com­pleted his or her term where he or she:

a.

wil­fully or through gross neg­li­gence com­mits ser­i­ous breaches of his or her of­fi­cial du­ties; or

b.

has per­man­ently lost the abil­ity to per­form his or her of­fi­cial du­ties.

¹Pri­or to tak­ing of­fice, judges shall take an oath per­tain­ing to ful­filling their du­ties con­scien­tiously.

²They are sworn in be­fore the Plen­ary Court.

³A sol­emn prom­ise may be made in lieu of swear­ing an oath.

The Fed­er­al As­sembly shall is­sue an or­din­ance on the em­ploy­ment and re­mu­ner­a­tion of judges.

¹The Fed­er­al As­sembly shall elect a per­man­ent judge to be Pres­id­ent of the Fed­er­al Pat­ent Court.

²The Pres­id­ent of the Fed­er­al Pat­ent Court is elec­ted for a full term of of­fice. Re-elec­tion is per­mit­ted.

³The Pres­id­ent of the Fed­er­al Pat­ent Court must pos­sess leg­al train­ing.

⁴He or she presides over the Plen­ary Court and rep­res­ents the Court in deal­ing with third parties.

⁵The Vice-Pres­id­ent acts as the Pres­id­ent's deputy.

¹The Plen­ary Court shall elect as Vice-Pres­id­ent:

a.

the second per­man­ent judge; or

b.

a non-per­man­ent leg­ally trained judge.

²If it elects the second per­man­ent judge as Vice-Pres­id­ent, it shall elect the third mem­ber of the Ad­min­is­trat­ive Com­mit­tee from the non-per­man­ent judges. The ap­point­ment of a sub­sti­tute may be provided for in reg­u­la­tions.

²Elec­tions to the Plen­ary Court shall be val­id where at least two-thirds of all judges take part in a ses­sion or a cir­cu­lar pro­ceed­ing.

¹The Ad­min­is­trat­ive Com­mit­tee is re­spons­ible for the Court's ad­min­is­tra­tion.

²Its mem­bers are:

a.

the Pres­id­ent of the Fed­er­al Pat­ent Court;

b.

the Vice-Pres­id­ent;

c.

the second per­man­ent judge or, if that judge acts as Vice-Pres­id­ent, a non-per­man­ent judge.¹

³The Ad­min­is­trat­ive Com­mit­tee is re­spons­ible for:

a.

en­act­ing rules and reg­u­la­tions on the or­gan­isa­tion and ad­min­is­tra­tion of the Court, al­loc­a­tion of du­ties, the com­pos­i­tion of the pan­els, dis­clos­ure of in­form­a­tion, court fees, and the com­pens­a­tion of parties to pro­ceed­ings, of­fi­cial rep­res­ent­at­ives, ex­perts and wit­nesses;

b.

all tasks and du­ties that are not as­signed to an­oth­er body un­der this Act.

¹As a gen­er­al rule, the Court makes its de­cisions as a three-mem­ber body (pan­el), of whom at least one mem­ber must pos­sess tech­nic­al train­ing and one mem­ber leg­al train­ing.

²On the or­der of the Pres­id­ent, the Court shall make its de­cisions as a five-mem­ber pan­el, at least one mem­ber of which must pos­sess tech­nic­al train­ing and one mem­ber leg­al train­ing where this is in the in­terest of the fur­ther de­vel­op­ment of the law or the uni­form ap­plic­a­tion of the law.

³Where more than one tech­nic­al field of ex­pert­ise is to be judged in a dis­pute, on the or­der of the Pres­id­ent, the Court shall make its de­cision as a pan­el com­posed of up to sev­en mem­bers, of whom at least one must pos­sess leg­al train­ing.

⁴The tech­nic­ally trained judges are ap­poin­ted ac­cord­ing to the tech­nic­al field of ex­pert­ise at is­sue in a dis­pute.

⁵At least one per­man­ent judge must al­ways sit on a pan­el oth­er than in cases of force ma­jeure.

¹Elec­tions by the Plen­ary Court and the Ad­min­is­trat­ive Com­mit­tee are ad­op­ted and elec­tions de­cided by an ab­so­lute ma­jor­ity of the votes cast.¹

^1bisThe Ad­min­is­trat­ive Com­mit­tee takes its de­cisions by a simple ma­jor­ity.²

²Where there is a tie, the Pres­id­ent has the cast­ing vote; elec­tions and ap­point­ments are de­cided by draw­ing lots.

³The non-per­man­ent judges and the per­man­ent judges on a part time basis have full vot­ing rights.

⁴Judges shall re­cuse them­selves in mat­ters in which they have a ves­ted in­terest.

¹The Pres­id­ent of the Fed­er­al Pat­ent Court de­cides as a judge sit­ting alone on:

a.

the sum­mary dis­missal of mani­festly in­ad­miss­ible ac­tions;

b.

pe­ti­tions for pre­lim­in­ary meas­ures;

c.

pe­ti­tions for leg­al aid;

d.

the dis­missal of pro­ceed­ings on grounds of ir­rel­ev­ance, with­draw­al or re­cog­ni­tion of the claim or set­tle­ment;

e.

ac­tions for the grant­ing of a li­cence un­der Art­icle 40d of the Pat­ent Act of 25 June 1954.¹

²He or she may en­trust some or all of these tasks to oth­er leg­ally trained judges or the second per­man­ent judge.²

³Where re­quired for leg­al or fac­tu­al reas­ons, a single judge may de­cide with two oth­er judges in a pan­el of three.³ Where the un­der­stand­ing of a tech­nic­al mat­ter is of par­tic­u­lar sig­ni­fic­ance, de­cisions must be made in a pan­el of three.

¹Court clerks take part in case brief­ings and in mak­ing de­cisions. They act in an ad­vis­ory ca­pa­city.

²They draft pro­pos­als un­der the su­per­vi­sion of a judge and edit the de­cisions of the Fed­er­al Pat­ent Court.

³They per­form oth­er tasks that are as­signed to them in a set of reg­u­la­tions.

⁴The em­ploy­ment and re­mu­ner­a­tion of court clerks is gov­erned by the Fed­er­al Per­son­nel Act of 24 March 2000.¹

The Fed­er­al Pat­ent Court shall dis­close to the pub­lic in­form­a­tion on its ad­ju­dic­a­tion activ­it­ies.

¹The Fed­er­al Pat­ent Court has ex­clus­ive jur­is­dic­tion over:

a.

valid­ity and in­fringe­ment dis­putes and ac­tions for is­su­ing a li­cence in re­spect of pat­ents;

b.

or­der­ing pre­lim­in­ary meas­ures be­fore an ac­tion as defined in let­ter a be­comes pending;

c.

the en­force­ment of de­cisions made un­der its ex­clus­ive jur­is­dic­tion.

²It also has jur­is­dic­tion in oth­er civil ac­tions that have a fac­tu­al con­nec­tion to pat­ents, in par­tic­u­lar con­cern­ing the right to pat­ents or their as­sign­ment. The jur­is­dic­tion of the Fed­er­al Pat­ent Court does not pre­clude that of the can­ton­al courts.

³Where the nullity or in­fringe­ment of a pat­ent is to be ad­ju­dic­ated be­fore a can­ton­al court on a pre­lim­in­ary ques­tion or de­fence basis, the judge shall grant the parties a reas­on­able peri­od of time for fil­ing the valid­ity or in­fringe­ment ac­tion be­fore the Fed­er­al Pat­ent Court. The can­ton­al court shall stay the pro­ceed­ings un­til a fi­nal and ab­so­lute de­cision has been made on the ac­tion. Where no ac­tion is filed be­fore the Fed­er­al Pat­ent Court with­in the spe­cified time lim­it, the can­ton­al court shall re­sume the pro­ceed­ings and the pre­lim­in­ary ques­tion or de­fence shall be dis­reg­arded.

⁴Where the de­fend­ant party files a counter-claim of nullity or in­fringe­ment of a pat­ent, the can­ton­al court shall refer both ac­tions to the Fed­er­al Pat­ent Court.

Pro­ceed­ings be­fore the Fed­er­al Pat­ent Court are gov­erned by the Civil Pro­ced­ure Code of 19 Decem­ber 2008¹, un­less oth­er­wise provided in the Pat­ent Act of 25 June 1954² or this Act.

Non-per­man­ent judges shall re­cuse them­selves in pro­ceed­ings where a mem­ber of the judge's law firm or pat­ent law firm or em­ploy­er rep­res­ents one of the parties.

¹In pro­ceed­ings con­cern­ing the valid­ity of a pat­ent, pat­ent at­tor­neys may also rep­res­ent parties be­fore the Fed­er­al Pat­ent Court as provided for in Art­icle 2 of the Pat­ent At­tor­ney Act of 20 March 2009¹ provided that they en­gage in in­de­pend­ent prac­tice.

²Proof of in­de­pend­ent prac­tice as a pat­ent at­tor­ney is fur­nished by way of suit­able doc­u­ment­a­tion at the re­quest of the Fed­er­al Pat­ent Court.

³In all pro­ceed­ings be­fore the Fed­er­al Pat­ent Court, pat­ent at­tor­neys as defined in Art­icle 2 of the Pat­ent At­tor­ney Act of 20 March 2009 shall be giv­en the op­por­tun­ity to present tech­nic­al ar­gu­ments con­cern­ing the facts of the case.

Lit­ig­a­tion costs are:

a.

court costs;

b.

rep­res­ent­a­tion costs.

¹Court costs are:

a.

court fees;

b.

ex­penses, namely costs for pho­to­copy­ing leg­al briefs; post­ing sum­monses and oth­er items of ser­vice; trans­la­tions, with the ex­cep­tion of those between the of­fi­cial lan­guages; as well as com­pens­a­tion for ex­perts and wit­nesses.

²The amount of the court fees is gov­erned by the value in dis­pute, the scale and com­plex­ity of the case, the form of the pro­ceed­ings, and the fin­an­cial cir­cum­stances of the parties.

³As a gen­er­al rule, they amount to between 1,000 and 150,000 francs.

⁴In set­ting the amount of the court fees, the Fed­er­al Pat­ent Court may de­part from the frame­work of para­graph 3 where this is jus­ti­fied by spe­cial reas­ons.

⁵It may waive court costs where they have not been oc­ca­sioned by one of the parties or a third party.

The award of com­pens­a­tion for rep­res­ent­a­tion costs by the Fed­er­al Pat­ent Court is made in ac­cord­ance with the sched­ule of rates (Art. 33). The parties may sub­mit an in­voice.

The Fed­er­al Pat­ent Court es­tab­lishes the rates for lit­ig­a­tion costs.

¹Where the party re­ceiv­ing leg­al aid does not pre­vail, the lit­ig­a­tion costs are charged as fol­lows:

a.

Coun­sel provid­ing free leg­al rep­res­ent­a­tion re­ceives ap­pro­pri­ate com­pens­a­tion from the Fed­er­al Pat­ent Court.

b.

The court costs are borne by the Fed­er­al Pat­ent Court.

c.

The op­pos­ing party is re­im­bursed the ad­vance on costs paid by it.

d.

The party re­ceiv­ing leg­al aid pays the op­pos­ing party's rep­res­ent­a­tion costs.

²Where the party re­ceiv­ing leg­al aid pre­vails and where it is pre­sumed or known that the rep­res­ent­a­tion costs are not re­cov­er­able from the op­pos­ing party, coun­sel provid­ing free leg­al rep­res­ent­a­tion re­ceives ap­pro­pri­ate com­pens­a­tion from the Court's cash­ier's of­fice. The party re­ceiv­ing leg­al aid re­im­burses the court when it is later in a po­s­i­tion to do so.

¹The Pres­id­ent presides over pro­ceed­ings in the ca­pa­city of in­struct­ing judge un­til a de­cision is made. He or she may as­sign this task:

a.

to an­oth­er leg­ally trained judge; or

b.

to the second per­man­ent judge.¹

²The in­struct­ing judge may con­sult a tech­nic­ally trained judge at any time; this judge shall act in an ad­vis­ory ca­pa­city.

¹The Court shall des­ig­nate one of­fi­cial lan­guage as the lan­guage of pro­ceed­ings. The lan­guage of the parties shall be taken in­to con­sid­er­a­tion where it is an of­fi­cial lan­guage.

²In mo­tions and or­al hear­ings, each of the parties may ex­press it­self in an of­fi­cial lan­guage oth­er than the lan­guage of the pro­ceed­ings.

³Eng­lish may also be used provided that the Court and the parties give their con­sent. The judg­ment and pro­ced­ur­al rul­ings shall be draf­ted in one of the of­fi­cial lan­guages in any event.

⁴Where a party sub­mits doc­u­ments that are not in one of the of­fi­cial lan­guages or, in the case of para­graph 3, not in Eng­lish, the Fed­er­al Pat­ent Court may waive the re­quire­ment of a trans­la­tion sub­ject to the agree­ment of the op­pos­ing party. Oth­er­wise it will dir­ect that a trans­la­tion should be made where this is ne­ces­sary.

¹Ex­perts shall sub­mit their opin­ions in writ­ing.

²The parties shall be af­forded an op­por­tun­ity to sub­mit their po­s­i­tion on the opin­ion in writ­ing.

³Where a tech­nic­ally trained judge pos­sesses spe­cif­ic ex­pert­ise, the judge's ex­pert opin­ion shall be entered in the court re­cord. The parties shall be giv­en an op­por­tun­ity to sub­mit their po­s­i­tion on the court re­cord.

Once the evid­ence has been taken, the Fed­er­al Pat­ent Court shall give the parties the op­por­tun­ity, on reasoned re­quest, to com­ment in writ­ing on the res­ult of the evid­ence.

¹The pro­ced­ure for grant­ing and amend­ing the con­di­tions of a li­cence as provided for in Art­icle 40d of the Pat­ent Act of 25 June 1954¹ is ini­ti­ated by fil­ing an ac­tion, in one of the forms spe­cified by Art­icle 130 of the Civil Pro­ced­ure Code.²³

²It is settled by way of a de­cision with­in one month of ac­tion be­ing filed.

³Oth­er­wise the pro­vi­sions of the Civil Pro­ced­ure Code of 19 Decem­ber 2008 per­tain­ing to sum­mary pro­ceed­ings ap­ply.

The amend­ment of cur­rent le­gis­la­tion is reg­u­lated in the An­nex.

The Fed­er­al Pat­ent Court shall, where it is com­pet­ent, ad­ju­dic­ate in cases that are pending be­fore the can­ton­al courts when this Act comes in­to force, provided that the main hear­ing has not yet been held.

¹This Act is sub­ject to an op­tion­al ref­er­en­dum.

²The Fed­er­al Coun­cil shall de­term­ine the com­mence­ment date.