i Patent litigation landscape in general
Until the end of 2011, each of the 26 Swiss cantons had one court that acted as the court of first instance for patent-related disputes. Most of these 26 courts had only limited experience in patent law because the majority of the patent cases were brought before the four commercial courts of the cantons of Zurich, Argovia, Saint-Gall and Berne. Even these four commercial courts were not as experienced as the stakeholders would have wished because the number of cases handled by each of the commercial courts was still relatively low. The shortcomings of the old system were evident, but efforts to establish a new federal court before which all patent disputes could be concentrated failed for a long time due to constitutional restraints. This changed in 2000 when the Swiss Constitution was amended and the power to legislate in the field of civil procedure law moved from the cantons to the federal level. In a common effort, stakeholders sought to convince the federal government of the need to improve the legal system for patent litigation by creating a specialised court to serve as the sole court of first instance in patent matters in Switzerland. These endeavours were successful: the federal legislator addressed the issue and passed the Federal Patent Court Act (PCA) in March 2009, establishing the Swiss Federal Patent Court in Saint-Gall, a city in the north-eastern part of Switzerland, one hour away from Zurich.
The Federal Patent Court is vested with Switzerland-wide exclusive jurisdiction over those actions that require the application of substantive patent law, and the PCA provides for concurrent jurisdiction of the Federal Patent Court and the cantonal courts for other patent-related disputes, such as disputes arising from patent licensing agreements.2 Accordingly, the Federal Patent Court has exclusive jurisdiction over:
- actions regarding the validity of patents, patent infringement actions and actions for compulsory licences;
- applications for preliminary measures; and
- enforcement proceedings regarding judgments issued under the Federal Patent Court's exclusive jurisdiction.
The Swiss Federal Patent Court shares its name with the German Federal Patent Court. This coincidence should not disguise that the two courts play fundamentally different roles in the patent litigation systems of the two countries. While the German Federal Patent Court is not competent to adjudicate claims regarding the infringement of patents, the Swiss Federal Patent Court's jurisdiction extends to any and all questions that may arise in a patent litigation, including infringement and validity.
A notable feature of the Federal Patent Court is that it comprises both legally and technically trained judges. Roughly two-fifths of the technical judges graduated in chemistry, biochemistry or biology, a third in physics, and the rest in mechanical and electrical engineering.3 The vast majority of the technically trained judges are European patent attorneys. While the president is the only full-time judge of the Federal Patent Court, one technically trained judge has a part-time appointment and the further judges are called on a case-by-case basis.
In litigations before the Federal Patent Court, the parties are free to use for their submissions and pleadings any of the official Swiss languages – German, French, Italian and Romansh. If all parties agree, they may also use English.4 Parties make use of this option in roughly one-third of the cases.
ii Unitary patent territory Switzerland and Liechtenstein
According to a treaty between Switzerland and Liechtenstein, the two countries constitute one single patent territory.5 Swiss national patents and European patents designating Switzerland or Liechtenstein are also valid in the respective other country, and can only be invalidated for both countries together.
Nullity actions can be initiated before courts in Switzerland or in Liechtenstein. In both cases, a final appeal is possible to the Swiss Federal Supreme Court. While Switzerland has a specialised patent court (the Swiss Federal Patent Court), the ordinary courts are competent in Liechtenstein.
II TYPES OF PATENT
Switzerland is a signatory to the European Patent Convention, so Swiss national patents and European patents granted by the European Patent Office coexist in Switzerland. The granting authority for Swiss national patents is the Swiss Federal Institute of Intellectual Property (IPI) in Berne, which also maintains the register for Swiss national and the Swiss parts of European patents.6 Unlike European patents, Swiss national patents are granted without the IPI examining whether the invention is new and inventive in light of the prior art.7 Despite this difference, a Swiss national patent confers the same rights on its proprietor as the Swiss part of a European patent.
Under Swiss law, supplementary protection certificates (SPCs) for medicinal products and for plant protection products may be granted on the basis of Swiss national and Swiss parts of European patents. The Swiss regime8 for SPCs closely follows the corresponding legislation of the European Union. However, because Switzerland is not a member of the European Union, judgments of the European Court of Justice on the interpretation and application of the EU legislation on SPCs are not binding in Switzerland. A Swiss SPC's maximum term of protection is five years.
Swiss lawmakers also partially followed the EU's endeavours to improve the health of children by incentivising pharmaceutical companies to perform paediatric tests for their drugs by extending already granted SPCs by an additional six months (Paediatric Extensions).9 The Swiss legislator, however, went one step further and decided to not only grant the benefit of an additional six months' exclusivity period to those who have already been granted an SPC, but also to those who, for whatever reason, have not previously obtained an ordinary SPC (Paediatric Certificate).10 The IPI is presently implementing the regulations for the Paediatric Extensions and the novel Paediatric Certificates, and the respective provisions are expected to come into force in 2019.
III PROCEDURE IN PATENT ENFORCEMENT AND INVALIDITY ACTIONS
i Patent enforcement actions
In Switzerland, the Federal Patent Court has exclusive jurisdiction for patent enforcement actions. An enforcement action is initiated with the filing of a written and substantiated statement of claim and payment of an advance on court costs, which is followed by the written statement of defence. In the statement of defence, the defendant may either file a counterclaim on invalidity or simply raise the invalidity of the patent in suit as a defence. In the case of a counterclaim, the Federal Patent Court declares the patent invalid with erga omnes effect if it finds that the challenge has merit, while in the case of a successful invalidity defence the infringement claim is dismissed without the court revoking the patent. Challenging the validity of a patent is usually not considered a reason for staying infringement proceedings.
Swiss courts have a long tradition of actively facilitating and promoting settlements. The Federal Patent Court is faithful to this tradition. The procedural step that serves this purpose is the preparatory or settlement hearing, to which the parties are typically summoned once both parties have had the opportunity to submit their arguments on infringement and validity.11 If the defendant questions the validity of the patent in the statement of defence, the plaintiff is given the opportunity to submit a partial reply limited to the aspect of validity before the preparatory hearing is held. At the preparatory hearing, a court delegation typically consisting of a legal and a technical judge provide their preliminary opinions on how they would decide the case in light of the submissions and evidence produced so far. Because at this stage the fact-finding has not been concluded and only the opinions of two out of three to five judges that would render a final judgment are given, this preliminary assessment does not prejudice the final outcome of the case. In order to reinforce the preliminary nature of their opinions, the opinions are only provided orally, and the parties are prohibited from referring to them in their subsequent submissions and pleadings. The preliminary opinions of the judges serve as starting point for subsequent settlement discussions with the involvement of the court delegation. Statistically, the majority of patent disputes is settled at this stage.
The further course of the litigation depends on whether the case is settled at the preparatory hearing or not. If no settlement is achieved, the plaintiff is given the opportunity to complete the statement of reply with regard to infringement, followed by defendant's statement of rejoinder. After the double exchange of briefs has been completed, a technical judge provides a written opinion that is then provided to the parties for commenting. The final step is a hearing that is the first and last opportunity for the parties to directly address the full panel of judges. While the parties are precluded from introducing new facts at this stage, they typically use this opportunity to emphasise certain points and summarise their view in particular on the technical judge's opinion. The court then renders its judgment on infringement and, if relevant, the invalidity counterclaim, typically within around 18 months of commencement of the action.
In the case of infringement actions, it is standard practice in Switzerland to request the court to decide on the infringement or liability first, to then order the defendant to provide information on his or her sales and profits and to decide on the quantum only thereafter. This course of action is called 'action by stages'.
Under Swiss law, the owner of a patent as well as any person who holds an exclusive licence under the respective patent is entitled to bring an infringement action, irrespective of whether the licence is registered in the patent register.12
The following table provides an overview of the steps and the timing of a typical infringement action before the Federal Patent Court:
Federal Patent Court
Statement of claim
Advance on court costs
Statement of defence (invalidity counterclaim or invalidity defence possible)
Partial reply on validity
Instruction/settlement hearing. Litigation terminates if there is a settlement. If no settlement is reached, litigation continues
Approximately 3 months after partial reply on validity
Partial reply on infringement
Comments on new allegations in rejoinder
Written opinion of technical judge
Comments on written opinion of technical judge
Comments on written opinion of technical judge
Approximately 3 months after last submission
Appeal proceedings at Federal Supreme Court
Approximately 6–9 months
ii Invalidity actions
Invalidity actions follow the same structure and are typically also decided within around 18 months of the filing of the action. Exclusive jurisdiction for invalidity actions is with the Federal Patent Court.
Pursuant to the Swiss Patent Act, anyone with a proven interest may bring an invalidity action.13 An invalidity action may be brought despite pending proceedings before the European Patent Office, but the Patent Act provides that the Federal Patent Court may stay its action pending a final decision of the patent office.14 In practice, the Federal Patent Court only makes very reluctant use of this option. Rather than staying an invalidity action, the Federal Patent Court prefers to invite the European Patent Office to accelerate its proceedings.
Whenever the validity of a patent is challenged, be it in an invalidity action or in the case of a counterclaim in infringement proceedings, the patentee is free to amend the patent claims in the court proceedings. The patent may be limited by deleting patent claims altogether, by combining an independent claim with one or more dependent claims, or otherwise, provided the restricted claim still relates to the same invention and defines an embodiment that is included in the specification of the published patent and in the version of the application that determined the date of filing.15
iii Interim relief
Anybody who has standing to bring an infringement action is entitled to interim relief, in particular in the form of a preliminary injunction, if he or she provides prima facie evidence:
- that the defendant has committed or intends to commit an act of infringement; and
- that he or she is threatened by a loss that is not easily reparable.16
Such requests are decided in inter partes proceedings, unless the urgency is so great that hearing the defendant prior to ordering measures is not warranted, in particular because it would frustrate the very purpose of the requested measure. If an interim measure is ordered ex parte, it needs to be confirmed inter partes.
For inter partes interim relief, immediate urgency is not an independent requirement. According to case law, a claim for preliminary relief is forfeited if the petitioner, after having learned about the infringement, files the request for preliminary relief so late that a decision on this request may no longer be expected to issue sooner than a judgment in an ordinary proceedings initiated immediately after the petitioner had learned about the infringement would have issued. This is called the concept of 'relative urgency'.
As in proceedings on the merit, the defendant can raise invalidity of the asserted patent as a defence.
The Federal Patent Court may, upon request or ex officio, make an interim measure conditional on the payment of security by the applicant if it is anticipated that the interim measures may cause loss or damage to the alleged infringer.17
A party expecting a patentee to file an ex parte request for interim measures can deposit a protective letter explaining to the Federal Patent Court the reasons why such a request should be dismissed, or at least not decided ex parte.18 The patentee is only informed of the protective letter after having filed a request for interim measures.
Interim relief proceedings before the Federal Patent Court typically take between three and nine months, depending on the number of asserted patents and the complexity of the issues raised by the parties.
The applicant is liable for any loss or damage caused by unjustified interim measures.19 An action for damages must be substantiated and proven in a separate lawsuit. Where the exact value of the loss or damage cannot be quantified, the court may estimate the amount, provided the claimant has sufficiently substantiated the factors required for the estimation. On the other hand, the court may reduce the damages or entirely release the applicant from liability if the latter proves that he or she applied for the interim measure in good faith. Whether full or any damages are awarded therefore depends on whether the applicant is found to have applied for the interim measure for legitimate reasons and has conducted the proceedings in good faith.
iv Means of evidence
Patent actions are largely based on written evidence such as written prior art, evidence in writing for the skilled person's general knowledge, drawings and photographs of the allegedly infringing embodiment, correspondence between the parties and the like. Other means of evidence are used much less frequently; witnesses are rarely heard, affidavits and private expert opinions do not qualify as means of evidence,20 and because the Federal Patent Court usually finds the required expertise among its judges, it does not need to rely on the opinion of external experts.
IV SUBSTANTIVE LAW
The infringement analysis necessarily begins with claim interpretation. The starting point is the wording of the patent claims, whereby in case of a European patent the wording of the claim in the respective procedural language is binding, even if this is English. Pursuant to Article 69 of the European Patent Convention and the parallel provision in the Swiss Patent Act,21 the description and the drawings must be used to interpret the patent claims.
Rather than providing a conclusive list of infringing activities, the Swiss Patent Act, in a general manner, states that the patent confers on its proprietor the right to prohibit others from commercially using the invention.22 By way of example, 'using the invention' includes manufacturing, storage, offering, placing on the market, importing, exporting and carrying in transit, as well as possession for any of these purposes. If the invention concerns a manufacturing process, the effects of the patent also extend to the products directly obtained by that process.23
With respect to transit, the Patent Act clarifies that carrying in transit may only be prohibited if the proprietor of the patent is permitted to prohibit importation into the country of destination.24
The Patent Act further states that 'imitation is also deemed to constitute use'.25 This provision served as basis for a long chain of case law that ultimately evolved in today's doctrine of equivalence. According to recent case law,26 a method or device that does not literally fulfil one or more claim features but employs replacing features is considered an 'imitation' if the following three questions may be answered in the affirmative:
- Does the replacing feature objectively fulfil the same function as the replaced feature ('same effect')?
- Is the replacing feature and its objectively same function rendered obvious to the skilled person by the teaching of the patent ('accessibility')?
- Would the person skilled in the art, giving due consideration to the wording of the claim in view of the description, have taken the replacing feature into account as being equivalent to the claimed feature ('equal value')?
Furthermore, the Patent Act holds that not only the direct infringer may be held liable, but also 'any person who abets any [direct infringement], participates in them, or aids or facilitates the performance of any of these acts'.27 Illicit contributory infringement therefore requires that the person in question contributes to an act that qualifies as direct infringement under the Swiss Patent Act. From this requirement of accessoriness, Swiss courts have concluded that a person may be liable as contributory infringer only if the direct infringement to which he or she contributes takes place in Switzerland. On the other hand, Swiss courts have also decided that it does not matter from where the contributory infringer contributes to a direct infringement in Switzerland. A person may, therefore, be liable as contributory infringer under Swiss law if this person contributes to a direct infringement in Switzerland either from within Switzerland or from abroad.28 A further requirement derived from the statutory requirement of accessoriness is that there must be a sufficiently close causal connection between the contributory action and the direct infringement.29 This is the case if, for example, means are explicitly offered for an infringing use or if means may only be used in such a manner.
ii Invalidity and other defences
Swiss national patents and European patents are presumed to be valid. Upon request of an interested third party, a Swiss national and a Swiss part of a European patent may, however, be declared completely or partially invalid if the subject-matter of the patent is not patentable – in other words:
- if what is claimed is not novel, not inventive, lacks industrial applicability or relates to unpatentable subject matter;30
- if the invention is not described in the specification in a manner sufficiently clear and precise for it to be carried out by a person skilled in the art;
- if the subject matter of the patent goes beyond the content of the patent application in the version that determined the filing date; or
- if the proprietor of the patent is neither the inventor nor his or her successor in title, nor has a right to the grant of the patent on other legal grounds.31
The novelty test is strict. An invention only lacks novelty if it is anticipated in a single piece of prior art or by prior use. While both the Federal Patent Court as well as the Federal Supreme Court have repeatedly stated that there is no single test for assessing inventive step, both courts predominantly apply a modified form of the problem-solution approach initially developed by the European Patent Office.32
Defences to infringement claims include a private use exemption, an experimental use exemption, a Bolar-type exemption and a prior user right.33 Two further exceptions, doctor's and a pharmacist's exceptions, have passed parliament and are scheduled to enter into force in 2019. Furthermore, the Patent Act contains a quite detailed provision on exhaustion.34 The principle rule is that patent rights exhaust on a Switzerland and EEA-wide basis (the principle of regional exhaustion). Exceptions to this rule are international (global) exhaustion if the patent protection is only of subordinate importance for the functional characteristics of the goods in question, and national (Swiss) exhaustion if the prices of the patented goods are publicly fixed. In a preliminary injunction case, the Federal Patent Court held that a patented cooling system for a turbo charger was only of subordinate importance (i.e., 'nice to have') for a car equipped with a combustion engine featuring such a device, and that therefore in that case international exhaustion applied.35
V FINAL REMEDIES FOR INFRINGEMENT
The standard forward-looking remedy for infringement is a permanent injunction.36 Injunctive relief is granted unconditionally and automatically. In addition, the patentee may demand that the unlawful situation be remedied, for example, by withdrawal of infringing goods from the supply chain or destruction of infringing goods.
The successful claimant may also ask for compensation for past infringement and alternatively claim damages based on tort law, the infringer's profits based on the law on the conducting of business without mandate or a reasonable royalty based on the law on unjust enrichment.37 While the claim for the infringer's profits requires that the infringer acted in bad faith, damages are awarded if the defendant infringed the patent negligently or intentionally, and the royalty claim is independent of the defendant's fault. If the requirements of all claims are fulfilled, the claimant does not need to elect until the taking of evidence has been concluded and the defendant has rendered account.
A compensation action may only be brought after the patent has been granted. The infringer may, however, be held liable for loss or damage caused from the time when he or she first obtained knowledge of the content of the patent application, but at the latest from the publication of the application.38
VI OTHER TYPES OF PATENT PROCEEDING
i Precautionary taking of evidence
Before the implementation of the Federal Patent Court, in most cantons the only situation in which a court could take evidence prior to the evidentiary phase of the proceedings on the merits was where the relevant evidence was at risk. For the past few years, Swiss law has opened up new opportunities in this respect that have proven to work well and to deliver results quickly.
The Swiss Code of Civil Procedure provides that courts must take evidence at any time before a case on the merits becomes pending if the requesting party has an 'interest worthy of protection'.39 According to now-established case law, one such interest justifying the taking of evidence prior to the filing of an action on the merits is the requesting party's interest in being better able to assess the chances of success of a potential civil claim. This tool is, in other words, designed to help avoid unnecessary proceedings. It proved to be helpful in cases where a party requires information that is in the hands of the opponent in order to decide whether initiating a litigation is warranted or not.
The patent act, on the other hand, introduced a new tool that in the literature has been denominated 'saisie helvétique'. In order to not only preserve but establish evidence, the Federal Patent Court can be requested to order the exact description of an allegedly infringing process, of allegedly infringing products or of the means used for producing such products.40
In practice, delineating the two tools is not easy and they are often combined to obtain clarity with respect to a 'missing link'. As a requirement, the requesting party must provide prima facie evidence that the patent is infringed should the missing link be established. Typically, such requests are decided on in a couple of days, and the description is then conducted by a member of the Federal Patent Court without prior warning of the presumed infringer. In order to protect the confidentiality interests of the affected party, the law provides that the Federal Patent Court must give the affected party the opportunity to comment on the findings before they are handed over to the requesting party, and that the court in general shall take the necessary precautions to protect the affected party's legitimate interests. In particular, the Federal Patent Court typically excludes the requesting party from the description proceedings but allows their legal or patent attorneys to attend the description.
ii Further actions before the Federal Patent Court
Swiss law provides for the possibility of positive declaratory actions (e.g., declaration that a certain patent is valid) and of negative declaratory actions (e.g., declaration that a certain patent is not infringed).41 Declaratory actions are only accepted if the plaintiff substantiates (1) an uncertainty regarding a legal relationship; (2) that the uncertainty cannot be reasonably tolerated by the plaintiff any longer; and (3) that the plaintiff has no other option to remedy that uncertainty, in particular that there is no option to bring an action for performance against the defendant to remedy the intolerable uncertainty.
The Federal Patent Court is further competent to hear applications for the grant of compulsory licences and entitlement actions.
iii Further measures not involving the Federal Patent Court
Acts of wilful patent infringement are criminal offences under Swiss law.42 The maximum penalty is a custodial sentence not exceeding five years or a monetary penalty of up to slightly more than 1 million Swiss francs, or both.
The Swiss patent act also provides for border measures that can be put in place upon request of the proprietor of a patent.43 Request forms can be downloaded from the website of Stop Piracy, a Swiss association that includes members from the private sector, authorities and consumer representatives.44
As a court of first instance, decisions of the Federal Patent Court may be appealed. Such appeals are made directly to the Federal Supreme Court, which is the final court of appeals for all decisions rendered by the Federal Patent Court. The Federal Supreme Court only has very limited competence to review facts, and its decision-making processes are impressively efficient. Presently, appeal proceedings before the Federal Supreme Court usually take around six months.
VIII THE YEAR IN REVIEW
Among the judgments rendered in patent matters over the past 18 months, two stand out and are clearly considered leading cases.
In its judgment in the Pemetrexed dispute between patent owner Eli Lilly and Actavis, the Federal Supreme Court provided further guidance on the equivalent infringement assessment and in particular on the relevance of the prosecution history.45 The patent in suit was EP 1 313 508 B1. During prosecution, the relevant claim's wording had been narrowed down in several steps. First, the term 'antifolate' was replaced by 'pemetrexed,' which was then limited to 'pemetrexed disodium.' In first instance, the Federal Patent Court46 denied equivalent infringement by Actavis' generic Amtiris, which comprises pemetrexed diacid, for two reasons. The Federal Patent Court first held that Eli Lilly is bound by the limitation that it accepted in order to obtain the patent and that this limitation cannot be circumvented by asserting equivalent infringement. Second, the Federal Patent Court reasoned that in view of the claim wording and the specification the skilled person would have understood the term 'pemetrexed disodium' as a strict limitation. On appeal, the Federal Supreme Court lifted the first instance judgment. In respect of the alleged abandonment of subject matter, the Federal Supreme Court reminded that the principle of good faith only prohibits contradictory behaviour if the later behaviour frustrates third parties who legitimately relied on the prior behaviour. Because neither the EPC nor the Swiss Patent Act, leading literature and case law create a justification for third parties to rely on the prosecution history, third parties generally cannot base expectations on the applicant's actions during prosecution. The Supreme Court therefore concluded that Eli Lilly could not be held to have abandoned protection for pemetrexed diacid. Because the Supreme Court did not follow the Federal Patent Court's reasoning also with respect to the skilled person's allegedly strict understanding of the term 'pemetrexed disodium', it remanded the case. Subsequently, the Federal Patent Court confirmed infringement.47
A second landmark decision is the Federal Supreme Court's recent judgment on the validity of Gilead's Swiss SPC for the combination of tenofovir disoproxil fumarate and emtricitabine.48 The SPC had been granted by the Swiss Federal Institute of Intellectual Property applying the infringement test, which the Federal Supreme Court had found to be relevant for assessing whether a product is protected by a patent in its Fosinopril judgment of 1998.49 Mepha, a Swiss Teva group company, challenged the validity of the SPC, arguing that in light of the development in the EU, Switzerland should give up the infringement test. Considering that the SPC's basic patent, EP 915 894, did not claim the combination of the SPC, Mepha argued that the SPC should be declared invalid under the CJEU's Medeva case law. The Federal Supreme Court agreed that going forward, the infringement test should no longer apply, but that SPCs that have been granted prior to the judgment (i.e., prior to 11 June 2018), should remain subject to the infringement test because a new interpretation of the same statutory provision should not retroactively invalidate property rights that had been formally granted by Swiss authorities under the previous interpretation of the highest court. While the Supreme Court did not go into the details of the test for which it gave up the infringement test, it stated in a general manner that a substance or combination of substances may only be considered protected by a basic patent if all substances are claimed in the respective patent, which criterion is fulfilled either if the claims name the substances or if the claims, construed in light of the description, implicitly, but necessarily and specifically relate to the substances. As in the EU, further guidance by the courts will be inevitable.
1 Andri Hess is partner at Homburger AG and a non-permanent judge at the Swiss Federal Patent Court.
2 Article 26 Patent Court Act.
3 See list of judges at https://www.bundespatentgericht.ch/en/about-the-court/judges/.
4 Article 36 Patent Court Act.
5 Vertrag zwischen der Schweizerischen Eidgenossenschaft und dem Fürstentum Liechtenstein über den Schutz der Erfindungspatente (Patentschutzvertrag) of 22 December 1978, amended on 2 November 1994.
7 Article 59 Paragraph 4 Patent Act: 'The Institute shall not examine whether the invention is new or whether it is obvious having regard to the state of the art.'
8 Articles 140a et seq. Patent Act.
9 New Articles 140n et seq. Patent Act.
10 New Articles 140t et seq. Patent Act.
11 See explanations in Article 8 of the Guidelines on Proceedings before the Federal Patent Court, https://www.bundespatentgericht.ch/fileadmin/web-dateien/Richtlinien_zum_Verfahren_vor_dem_Bundespatentgericht_gueltig_ab_2016-01-01_EN.pdf.
12 Article 75 Patent Act.
13 Article 28 Patent Act.
14 Article 128 Patent Act.
15 Article 24 Patent Act.
16 Article 77 Patent Act in conjunction with Article 261 Code of Civil Procedure.
17 Article 264 Paragraph 1 Code of Civil Procedure.
18 Article 270 Code of Civil Procedure.
19 Article 264 Paragraph 2 Code of Civil Procedure.
20 Article 168 Code of Civil Procedure. This does not prevent a party from submitting affidavits and private expert opinions. Even if they do not have evidential value in a strict sense, they may still provide guidance to the judges of the Federal Patent Court and cast doubt on findings of the technical judge in his or her technical opinion.
21 Article 51 Paragraph 3 Patent Act.
22 Article 8 Patent Act: 'The patent confers on its proprietor the right to prohibit others from commercially using the invention.'
23 Article 8a Patent Act.
24 Article 8 Paragraph 3 Patent Act.
25 Article 66 letter (a) Patent Act.
26 Federal Supreme Court judgment 4A_131/2016 of 3 October 2016 'Urinal valve'; Federal Patent Court judgment O2014_002 of 25 January 2016.
27 Article 66 letter (d) Patent Act.
28 Federal Supreme Court judgment 129 III 25 of 7 October 2002, consideration 2.2.
29 Federal Supreme Court judgment 129 III 588 of 21 July 2003, consideration 4.1.
30 Namely, methods of treating the human and animal body, plant and animal varieties and essentially biological methods for their creation, inventions contrary to public policy and morality.
31 Article 26 Patent Act.
32 See, for example, Federal Patent Court judgment S2017_001 of 1 June 2017 'Amlodipine and valsartan'.
33 Articles 9 and 35 Patent Act.
34 Article 9a Patent Act.
35 Federal Patent Court judgment S2016_006 of 14 July 2016 'Low noise turbo charger'.
36 Article 72 Patent Act.
37 Article 73 Patent Act.
38 Article 73 Paragraph 2 Patent Act.
39 Article 158 Code of Civil Procedure.
40 Article 77 Paragraph 1 letter (b) Patent Act.
41 Article 74 Patent Act.
42 Article 81 et seq. Patent Act.
43 Article 86a et seq. Patent Act.
45 Federal Supreme Court judgment 143 III 666 of 20 October 2017.
46 Federal Patent Court judgment O2015_004 of 9 March 2017.
47 Federal Patent Court judgment O2017_019 of 21 December 2017.
48 Federal Supreme Court judgment 4A_576/2017 of 11 June 2018.
49 Federal Supreme Court judgment 124 III 375 of 10 July 1998.