On January 1 2011 Switzerland will for the first time in its history put into force unified civil procedure rules applying to the whole country. To date, each of the 26 cantons apply different procedural statutes.
The new Federal Act on Civil Procedure will also result in some changes in the jurisdiction and organisation of the cantonal courts in IP litigation matters. Jurisdictional issues in patent matters are primarily subject to the provisions of the new Federal Patent Court Act – with the new Federal Patent Court holding largely exclusive nation-wide jurisdiction as first instance court in patent matters. Accordingly, the jurisdictional provisions of the new Act on Civil Procedure in IP matters apply primarily to litigation in trade mark, design, copyright, topography right and plant variety right matters.
For these types of proceedings, no nation-wide exclusive court of first instance will be introduced and the cantonal courts will retain jurisdiction for matters within their territories. Current federal law already provides that there must be a sole cantonal court in each canton that acts as court of first instance in these matters. However, the new Federal Civil Procedure Act requires additionally that the sole cantonal court must be the same court for proceedings in all of these subject-matter areas; at present, in some cantons different courts acts as sole cantonal courts for different types of IP subject-matter. The Act also makes clear that the exclusive jurisdiction of the sole cantonal court extends to contractual disputes relating to licensing or assignment of the subject IP rights; currently, cantonal court practice diverges on this issue. It will also be mandatory for the sole cantonal court to have jurisdiction over interim injunctions based on IP rights; at present, in some cantons it is not the sole cantonal court(s), but a different judicial instance which handles interim injunctions in IP matters. Mandatory conciliatory proceedings prior to lodging an action with the sole cantonal court will be prohibited by the new Federal Act. Appeals will be available only directly to the Federal Court, with prior appeals to a higher cantonal court no longer being available.
IP right owners as plaintiffs, as well as defendants in IP litigation, can accordingly expect to profit from the new rules which will to some extent reduce the procedural complexity, duration and cost of IP litigation in Switzerland.
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| Brendan B Bolli and Rainer U Schalch |
E Blum & Co AG
Vorderberg 11
CH-8044 Zurich, Switzerland
Tel: +41 43 222 56 00
Fax: +41 43 222 56 01
mail@eblum.ch
www.eblum.ch