NATIONAL JUDGES' PRESENTATIONS
CH Switzerland
Dieter BRÄNDLE - President, Federal Patent Court, St. Gallen - A New Swiss Patent Court
Ladies and Gentlemen, dear colleagues, dear friends,
it is my great pleasure to present to you a brand new court:
As of 1 January 2012, Switzerland has a Federal Patent Court.
History
This is a big change. As you might know, Switzerland is a federalist country consisting of 26 quite autonomous cantons - or states, if you like. While substantive patent law has been uniform federal law since 1888, it has been up to each of the 26 cantons to organise its courts and to enact its laws of civil procedure. The only federal requirement was, that each canton had to assign one court that dealt with patent cases.
The about 30 patent cases a year in Switzerland were dealt with by 26 different non-specialist cantonal courts applying their own and quite different cantonal codes of civil procedure.
Due to the small number of patent cases, most of the cantonal courts hardly ever handled patent litigation and thus never managed to develop any expertise. Of course plaintiffs tried to avoid these courts - at least, when they had a good case. The plaintiff could usually choose which court he wanted to go to, at least in infringement cases. So the majority of all patent litigation in Switzerland took place before the four commercial courts in Aarau, Berne, St. Gallen and Zurich. Courts that did quite well with patent matters, I'm told. But there were cases - e.g. revocation actions - that had to be taken to the court of the domicile of the defendant. And if this happened to be an unexperienced court, its judgement could, as one attorney put it, be in no way predictable. These unexperienced courts also had a tendency to rely on court appointed experts for assessing both patent infringement and patent validity. They outsourced their job, so to speak. This situation had long been the subject of criticism, especially considering Switzerland's position as one of the top patenting countries. The problem was in fact recognised many decades ago, but there were constitutional obstacles.
Creation of the Court / Federal Law on Civil procedure
Amendments of the constitution in the year 2000 then gave the federation the power to enact laws on civil procedure (Art. 122 [1]) and to set up new federal courts (Art. 191a [3)]).
Since January 1st, 2011, we finally do have a federal law on civil procedure - actually a terrible blow for old hands like myself who saw their decades of experience with a cantonal procedural law just vanish.
And what's more a Federal Patent Court was created.
As of January 1st, 2012, this court has sole jurisdiction for all of Switzerland over actions relating to patent validity and infringement (no bifurcation, of course) and for the granting of licences. Its jurisdiction also extends to ordering preliminary injunctions and to hearing other civil actions directly linked to patents, e.g. actions concerning licensing agreements or entitlement to patents.
Patent cases pending before cantonal courts were handed over to the Federal Patent Court. These were 37 cases, all in all, 5 concerning preliminary injunctions, 32 main proceedings.
Judges
The court has two full time judges, the president and a second full time judge.
Then there are 25 technically qualified judges (patent attorneys) and a dozen legally qualified judges (barristers) who are all part-time members to be called upon on a case-by-case basis.
Some 40 judges for 30 cases a year. What looks like an overkill is not. I'll come back to that.
These judges are not appointed, they are elected by parliament - by what Americans would call the joint House and Senate. In the elections for the other federal courts (Federal Supreme Court, Federal Penal Court and Federal Administrative Court) the party affiliation of a candidate plays the predominant role. Here the stakeholders managed to convince the lawmakers, that for the judges of the Patent Court party affiliation should not be taken into account. A demonstrated knowledge of patent law should be decisive. This requirement was fixed in the Patent Court Act, and the parliament's Committee on Courts, which is preparing the elections of federal judges, was authorized to consult in the selection process with the Patent Office and the professional associations in the field of patents. The committee made ample use of this unique authorization and the result was excellent, if I may say so. This court has very experienced and competent judges.
Philosophy of the Patent Court
The Patent Court is very pragmatic and down to earth. Each case represents a problem which has to be solved. The best solution of course is an agreement of the parties, a settlement. And the very best is a settlement that allows the parties to go on doing business with each other. Of course the Patent Court will not be able to settle all cases. But what it will try to achieve are
1) reasonable decisions
2) within a reasonable amount of time
3) at reasonable costs.
Composition of Panels
The court decides with panels of three, five or seven judges. The size is determined by the president. Standard will be three, but if the case involves different fields of technology or seems very important, it will be five or seven. The president also decides who sits on the panel. There must always be at least one technically and one legally qualified judge on the panel. The technical judges are called in to sit on the cases according to their specific knowledge. This is quite special and would be impossible according to the laws of many countries, but I can assure you it is extremely efficient.
Language
There are four official languages in Switzerland: German, French, Italian and Romansh (which we can forget for patent cases).
One of these languages will be fixed by the President as the language of proceedings. That is to say the language the court will use. This will usually be the language of the statement of claim. In most cases it will be German, in a few cases a year French, and once in a while - not too often, I hope - Italian.
And since our judges must not only cover the different fields of technology but also the languages mentioned the number of judges that were elected makes sense.
Regardless of the language of proceedings chosen by the court, the parties may use any of the official languages for their writs or oral arguments. And if the parties agree and the court approves, which it does, the parties may also use English.
This is quite a unique feature of this court. It might well be the only court in a non-English-speaking country that allows parties to use English. The judgment will nevertheless have to be rendered in the language of proceedings - the Federal Supreme Court wouldn't want to deal with an English judgement.
The proceedings
Our proceedings start in writing. There is a statement of claim. Then a statement of defence - in infringement cases usually combined with a counterclaim for revocation. After this first round of briefs - the court may also ask for a reply to the counterclaim for revocation - there will be a preparatory hearing with the President and one or two technically qualified judges from the field concerned. The parties are not allowed to just send their attorneys. They each have to bring in a person - or, if need be, several persons - who are familiar with the facts of the case and who have the power to settle the case.
This kind of hearing has been practiced for decades and very successfully by the Commercial Court in Zurich and is quite similar at the Patent Court. By the way, such a hearing was also stipulated in our beloved European Patent Litigation Agreement; it was called "first conference" there. It was also found in the Preliminary set of provisions for the Rules of procedure of the European and Community Patents Court, where it was called "interim conference". So this idea is quite European.
The purpose of this hearing is two-fold. One purpose is to clarify the position of the parties. That is to say, the delegation of the court tries to narrow down the differences of the parties by asking them the right questions. If there are legal aspects to be sorted out, it will be the President who will ask the questions. But usually there are technical problems to be dealt with. And that is where the technical judges step in. And this will change the whole mood of the meeting. I have to add that this hearing will take place in a special setting. Everybody - judges and parties - sits around a table and there are no wigs or gowns, just people discussing a problem. It is my experience that in this type of atmosphere parties don't lie to the judge. First you had the President with his legal problems that have to be dealt with but usually are not that interesting, and then come the technical judges and start to talk about the square shaft, the sprocket wheel, the guide disc, the locking bolt and the fuse members. That's like a wake-up for the technicians around the table. Or to put it more generally, as soon as the technical judges talk, the participating persons from the parties realize that there are people with the court who speak their language, who know their trade and have an understanding for their problems. The result is, the parties open up and are ready to put the facts on the table. And this is the first step towards a settlement.
The president and the technical judges will then each give the parties - that's off record of course - their provisional view of the case, based on the information they have at that time. The president will concentrate more on the legal aspects, whereas the technical judges will e.g. tell the parties why they consider the patent in question to be strong or weak and they will also give their opinion on the question of infringement. This is all provisional of course, no experts or witnesses have been heard. But it is my experience from the Commercial Court in Zurich that the judges - and especially the technical judges - can estimate fairly well the probability of an allegation being proven. And the judges can also say - that's the easier part - how they intend to answer the legal questions of the case. After the delegation of the court has presented their view of the case, it will be discussed with the parties. Then the delegation of the court elaborates its proposal for a settlement. This proposal is discussed with the parties. There will be heated discussions. As I said, we are all sitting around one table and of course the parties usually will both be not utterly happy with our proposal. So they will argue and say where our reasoning was bad, where we went wrong as far as the law or the facts or an estimation is concerned. This is a situation most judges would not be used to. They hand down their judgments and that's it. They don't have to answer to the parties. There may be an appeal but that is somehow far away. Whereas in our preparatory hearing the judges have to be able and to be willing to discuss all aspects of the case with the parties. This of course requires a thorough preparation on the side of the delegation of the court.
We expect to be able to settle around 50% of our cases at this hearing which will take place about five to seven months after the start of the proceedings. As of now we have had 6 such hearings and 4 of those ended up in a settlement.
Why do parties settle there and then? There are several reasons. The judgment is foreseeable. It will deal with the allegedly infringing embodiment only. A settlement can cover more ground, can e.g. define the scope of protection. Unlike our judgements, settlements are not published. And of course a settlement at this stage saves a lot of money.
If a settlement can't be achieved, the court may order the exchange of further briefs. Afterwards we will have the phase of taking evidence - if necessary - and there will be a main hearing to sum things up. And then the court will render its decision. Hopefully within one year after the beginning of the proceedings. If the court finds it necessary in spite of the knowledge of its technical judges to appoint an expert then the proceedings might take up to a year more.
The judgments of the Patent Court can be appealed to the Federal Supreme Court, which will usually decide in less than a year's time.
That much for our new Swiss Federal Patent Court.