Anyone who wants to combat patent infringements efficiently tries to enforce their rights with a temporary injunction.When is the urgency requirement fulfilled according to the jurisprudence of the Federal Patent Court of Switzerland? And when has the applicant forfeited his right to urgency?

On September 13, 2018, CSEM Centre Suisse d’Electronique et de Microtechnique SA filed an application for precautionary measures against Centres + Mètaux SA for infringement of the Swiss part of European patent EP 1 422 436 for a balance spring. The course of the proceedings was essentially as follows: October 23, 2018: Response to the request for measures with objection to invalidity November 23, 2018: Reply to the response to the request for measures December 18, 2018: Expert opinion of the court January 17, 2019: Main hearing February 11, 2019: Dispatch of the written judgment The court deemed the patent to be legally valid and granted the request for measures in the essential points. Note: CSEM filed an infringement action on December 19, 2018, even before the judgement, i.e. immediately after the expert opinion favorable to the patent holder had been issued. On the question of whether the application for measures had been filed in good time, the court said the following: According to Switzerland practice, the principle of “relative urgency” applies: if the application is filed so late that the measure proceedings are completed later than ordinary infringement proceedings initiated at an early stage, then the application is deemed to be late. The court then states that infringement proceedings before the Federal Patent Court typically take around two years. In comparison

proceedings take around eight to ten months. The relative urgency is therefore to be affirmed as long as the applicant submits his application within around 14 months of the time at which ordinary proceedings could have been initiated.

The start of the relevant period is assumed to be the time at which the applicant would have been in a position to initiate ordinary infringement proceedings if he had exercised due diligence. This is the case if the applicant could have been aware of this by exercising due diligence.

The requirements for the obligation to observe the market must not be overstretched. There is no obligation to disassemble competing products in order to determine whether they infringe the Patents. Only where the patent infringement is already recognizable on the basis of the externally perceptible form of a product and can be ascertained without purchasing the product and the patent proprietor must be aware of the competing product due to the circumstances, can he be accused of a breach of his duty of care if he does not recognize such an obvious infringement.

If the defendant claims that the application for measures was filed late, then he has the burden of proof.

Note: The 14-month rule is quite generous compared to, for example, the 4 weeks applied by certain German regional courts. Nevertheless, the patent proprietor will have to ensure that he investigates indications of patent infringement with the necessary diligence.