Enforcement of Intellectual Property Laws

Abstract

The present article concentrates on Patent Law with some comparison with the less contested problems of Trademark and Copyright enforcement.
By the Grant of Patents, the State conveys to the Patent Owner an absolute right over commercially applicable technical achievements for a limited period of time. The Patent Owner has an exclusive right to exercise the invention, to permit third parties to work the invention against compensation and to prevent its unauthorised use. Effective patent protection requires not only a reliable system of grant and administration but equally important an effective system of enforcement. The TRIPs agreement which forms part of the GATT Agreements concluded in Marrakech in 1994 has established uniform minimum standards of enforcement practically worldwide. The implementation of the TRIPs Agreement is far from completed.
In Switzerland 26 Cantonal Courts are competent for patent enforcement. With the exception of the five Courts of Commerce (Zürich, Bern, Aargau, St Gallen and Geneva) the competent Courts have no technical knowledge and little experience in patent matters. The Courts are forced to rely almost exclusively on outside experts even in injunction proceedings. As a result, patent enforcement in Switzerland is often very slow and there is little reliability and continuity of jurisprudence. As the Supreme Court may only re-examine questions of law and considers itself as bound by the facts established by the Cantonal Courts including Court Expert opinions it is unable to impose the desirable harmonisation of patent law jurisprudence. Patents that cannot be properly and timely enforced are of limited value. Insufficiencies of the enforcement procedures in Patent Law in Switzerland are detrimental to the encouragement of research and development and thus to the Swiss economy. It would be desirable to concentrate the enforcement of Patent Law in Switzerland to a Federal Patent Court with panels of technically trained judges composed by a Court of First Instance (possibly with two Chambers for the German and French part of the Country) and a Federal Court of Appeals following the US example.