EPLAW Patent Blog

CH - Mepha, Helvepharm and Streuli Pharma AG vs. Merck / alendronate dosage regime

Mepha AG, Helvepharm AG and Streuli Pharma AG vs. Merck & Co. Inc., Swiss Supreme Court, 4 March 2011, Case Nos. 4A_435/2010 and 4A_437/2010

In March 2009, the generics distributors Mepha, Helvepharm and Streuli Pharma sued Merck before the Commercial Court of Zurich for declaration of nullity of the Swiss part of Merck’s EP 1 175 904. The patent – which has been litigated in many European countries, for example in France, the Netherlands (as reported on the IPKat here), Sweden  and the UK (as reported on the IPKat here)  – claims an allegedly novel once weekly dosage regime of a known substance (alendronate) for a known indication (osteoporosis).

In April 2009, the Commercial Court of Zurich declared the patent invalid for lack of patentable subject matter, noting that the case law of the European Patent Office on second medical use claims concerning a novel dosage regime was unsettled. According to the Commercial Court, a dosage regime was a “method for treatment of the human body by therapy” in the sense of art. 2(2)(a) Swiss Patent Act, which corresponds to art. 53(c) EPC 2000. Since Swiss law knows no specific exception excluding physicians from patent liability, the patent put physicians at risk of being sued for patent infringement, which was what the drafters of the art. 53(c) EPC wanted to avoid.

CH - The New Swiss Patent Litigation System

The New Swiss Patent Litigation System, by Cyrill P. Rigamonti, University of Bern

"Switzerland is about to implement a completely new patent litigation system, following the establishment of a new specialized federal patent trial court and the replacement of twenty-six cantonal codes of civil procedure with a single uniform federal code of civil procedure. This article provides an overview of the general structure and an analysis of the most important features of the new Swiss patent litigation system."

Read the entire article (available on SSRN) here.

CH - further step to Swiss Federal Patent Court

Switzerland – A further step towards the establishment of the Swiss Federal Patent Court has been taken

Last year, the Swiss Parliament adopted the Law on the Federal Patent Court which will be the central Swiss court of first instance competent to decide in patent litigation cases instead of the commercial courts in the individual Cantons. The new Federal Patent Court will have the combined competence to decide on infringement and validity of the patent. It will take up its work in the beginning of next year. The centralised competence has been created in order to have a court of specialised knowledge considering that there is only a limited number of patent litigation cases in Switzerland which does not allow all commercial courts to obtain the desired specialised knowledge and experience.

On Wednesday June 16, 2010, the Parliament adopted the proposals of the Commission for the Judiciary for the judges of the Federal Patent Court. There will be two full-time judges, one legally qualified and one technically qualified judge. As the legally qualified judge who also acts as the President of the Court Mr. Dieter Brändle, at present judge at the Commercial Court in Zurich, was elected. His counterpart as technically qualified full-time judge will be Mr. Tobias Bremi, patent attorney in Zurich.

At the same time further 20 technically qualified and 11 legally qualified members of the Court were elected who will act as judges on a part-time basis. As a rule, the judges will sit in panels of three members.

Reported by Rudolf Teschemacher

CH - New Swiss Federal Patent Court expected to start operations in 2011

The new Swiss Federal Patent Court is expected to start operations in 2011 and has interesting transitory provisions, with thanks to Michael Kikinis, KIKINIS Law Firm

Recently, the Federal Council of Switzerland (the Swiss government) decided to enact the provisions regarding the institution and organization of the new Swiss Federal Patent Court as of 01 March 2010. It is expected that the judges will be elected in spring 2010, and the new Court is expected to start operations in 2011 (simultaneously with the coming into effect of the new unified Swiss Civil Procedure Law), first in Berne, and later (probably starting in 2012) in St. Gallen.