Federal patent court: procedural issues at the turning point of a new era

The Federal Patent Court will be operational as of 1 January 2012. This means the dawning of a new era for patent disputes carried out in Switzerland. The interested parties’ hopes and expectations are high but at the same time a lot of uncertainties in the interim regulation still exist. The taking over of pending procedures by the Federal Patent Court is based on the transitional provision in Art. 41 PatGG (Federal Patent Court Act). According to this provision the Federal Patent Court will take over those procedures which are pending at the time the PatGG becomes effective on 1 January 2012; but only if the actual main trial has not yet been completed. Thus, a central question is how the main trial is to be defined. Further, the criterion execution of the main trial is subject to interpretation. Besides the interpretation of Art. 41 PatGG, a further issue arises with regard to which court actually has to apply the transitional provision and thus who has to make the decision on the adoption of pending procedures. The adoption of the so-called Massnahmeverfahren (summary proceeding for the granting of an interim injunction) has not been regulated in the transitional provision of Art. 41 PatGG and therefore remains unclear. Finally, particular controversy arises with regard to the question as to which procedural law is applicable once the adoption has been decided. The starting point for tackling this question would be the transitional provision of Art. 404 ZPO (Swiss Civil Procedure Code). This article tries to give an overview of the uncertainties arising with the new legislation and attempts to point out possible solutions.