In March 2009, Swiss Parliament passed a new law establishing a Federal Patent Court. This new Court is expected to start operating in 2011, simultaneously with the coming into effect of the new unified Swiss Civil Procedure Law. The Federal Patent Court will serve as the court of first instance in patent matters (infringement and validity claims) for the whole territory of Switzerland thereby replacing to an essential extent the Cantonal courts which were so far competent in patent matters.
Surprisingly, the Swiss legislator has not specifically addressed the Federal Patent Court’s jurisdiction in relation to arbitral tribunals sitting in Switzerland. However, the new law speaks of the Court’s “exclusive jurisdiction” in patent matters. The issue therefore arises as to whether, in the future, patent claims could still be decided by arbitral tribunals seated in Switzerland.
Switzerland has always been considered as being one of the most liberal countries in the world with regard to the arbitrability of intellectual property claims. Already in 1975, the Swiss Office for Intellectual Property confirmed this approach in a published legal opinion referring to domestic arbitration. This opinion is still valid and can also be extended to international arbitration. What matters is whether an intellectual property claim can be subject to arbitration in accordance with Art. 177 para. 1 of the Private International Law Act (PIL) (i.e. any claim presenting a financial interest). This is usually the case, with some exceptions such as copyright matters relating to moral rights.
Accordingly, in the author’s view, the terms “exclusive jurisdiction” used in the new law, only refer to the position of the Federal Patent Court within the (state) judicial system. Absent any specific statement in the new law or related materials, these terms do not refer to the new Court’s jurisdiction in relation and compared to arbitration. A different interpretation would in addition lead to the strange result that patent disputes would fall under a different jurisdiction than trademark and design disputes. Hence, the position remains in Switzerland that all aspects of intellectual property rights, including patents, continue to be arbitrable to the extent that the claims fall under the ambit of Article 177 PIL.ASA Bulletin