Patent Infringement: The 8 Most Important Questions and Answers

1. What is a Patent Infringement?

A patent can be granted for a technical invention if its mechanism solves a problem in a new way. This can include methods of measuring, manufacturing, or controlling a machine, system, or product.

After obtaining a patent, no third party may use that invention without the explicit consent of the patent holder. This includes activities such as repeated manufacturing, offering for sale, importation, or commercial sale within the countries where protection is sought. If these actions occur regardless, it constitutes patent infringement. Multiple individuals can be held accountable if they were involved in or encouraged the unauthorized use.

2. When is a Warning Legally Justified?

A warning or injunction due to patent infringement is legally justified when a patented invention, as described above, is being unlawfully used. However, a fundamental rule in patent law is that an actual patent infringement only occurs when there has been repeated commercial use. If the use is strictly personal, legally speaking, it does not constitute patent infringement.

3. What are the Key Exceptions I Should Know?  

The prohibition on commercial use by a third party, as granted by a patent, ceases once the patent holder releases their invention for trade. This means that whoever lawfully acquires the product may also resell it.

Transit regulations abroad

As a patent holder, you can only stop the transit of goods through Switzerland by customs measures if you can also simultaneously prohibit their importation into the destination country. This means that valid assumptions of patent infringement must exist in both countries simultaneously.

Importation of goods from abroad 

In Switzerland, the law of unilateral, regional exhaustion within the European Economic Area (EEA), introduced in 2009, still applies. This means that exhaustion of rights occurs when the patent holder releases their product for trade within the EEA. From that point onward, trade between EEA countries is permitted. However, if a trader wishes to import the patented product from a country outside the EEA, they must first obtain permission from the patent holder.

Especially in the case of importing cheaper original goods from abroad, known as parallel imports, this can be advantageous for Swiss patent holders. Nevertheless, trading with foreign countries can be a complex matter. Having a specialized expert by your side is invaluable, especially in foreign trade.

4. How Should I Respond to a Patent Infringement Warning?

A patent infringement warning is a serious matter. However, upon receiving one, it's important to maintain composure. Do not act independently by signing or making payments. Also, do not contact the opposing party's lawyer. Instead, seek out a specialized patent lawyer who can guide you through the next steps. They will not only assess the legitimacy of the claim and the adequacy of the demands but may also spare you from an immensely costly legal battle in some cases.

5. What Penalties Can I Expect in Case of Patent Infringement?  

Initially, the patent holder will enforce their right to cessation. Ultimately, they want to prevent their invention from being sold, or used under another name, or used at all. Therefore, they may demand that you immediately and completely remove the relevant goods from the market. This includes recalling goods that have already been sold. You are responsible for taking appropriate measures with customs and covering the associated costs. These measures may include the seizure and destruction of imported goods. A cease and desist declaration can be issued through an extrajudicial warning or in the form of an injunction.

Additionally, the plaintiff may demand compensation payments. These typically include compensation for lost profits and disclosure of and surrendering your profits. The successful party also has the right to bill the opposing party for court and attorney fees. However, to claim compensation, the rights holder must prove the damage incurred and provide a clear quantification of it. Furthermore, they must prove that the damage was clearly caused by your fault.

If the case goes to civil court, the worst-case scenario could involve a judgment by seizure through enforcement.

6. What Should I Do if I Want to Report a Patent Infringement? 

If, through initial self-research, you are confident that a patent infringement has occurred, contact a patent attorney. They will conduct a proper legal investigation and discuss with you a strategy for enforcing your patent rights.

Typically, the first step involves issuing a warning and a cease and desist demand to the infringer. An out-of-court settlement is usually the initial goal, as it saves both parties a significant amount of money. Otherwise, the path leads towards a lawsuit, in which your attorney will expertly represent you. They can also assess the prospects of a lawsuit beforehand.

7. Can Patent Infringements be Avoided?

There is always a certain risk of rights infringement, as competition is fierce. In Switzerland alone, over a thousand new intellectual property applications are filed annually. Keeping track of these continuously is not easy. Therefore, thorough patent research is essential—both before applying for a patent and after obtaining one. When registering, institutes check whether your invention qualifies as a novelty in the objective sense. However, they do not check whether a similar product or process is already in commercial circulation. That is your responsibility.

8. Who Can Best Assist Me in Patent-Related Matters?   

In patent-related matters, the Swiss Federal Institute of Intellectual Property (IPI) can assist you. It provides free informational material and conducts a fee-based basic search for you. Additionally, engaging a seasoned patent attorney is still the best way to legally protect you and your company. At GetYourLawyer, we support you in finding one. Simply submit your request online, and you'll promptly receive quotes from selected patent attorneys tailored to your individual case.