How has your experience as an adjunct judge informed your IP practice, and vice versa?
My experience as a part-time judge makes it possible to better understand not only what is important from a court’s perspective, but also to notice what a court does not want to read or hear. Conversely, a part-time judge can more easily understand the role of the lawyer, in particular, the pressure exerted by clients and the constant search for a balance between two potentially conflicting concerns – namely, on the one hand, the effort to provide a fully substantiated statement of reasons and flawless requests for evidence, and, on the other, the attempt to avoid writing tediously long or even prolix legal briefs.
What are the biggest enforcement challenges currently facing rights holders in the medical and pharmaceutical fields?
From the Swiss perspective, the following aspects deserve to be highlighted:
- the possibilities for infringers of IP rights to delay civil as well as criminal proceedings and to circumvent judgments against them in practice;
- the difficulty for IP owners to prove their own damage or the profit of the infringer and thus to obtain adequate monetary compensation; and
- the often encountered factual hopelessness to prosecute infringers, although the relevant IP rights legislation would be available per se. The difficulties mainly lie in the implementation of – as well as in the legal differences and different approaches to – civil law and criminal law. There are too few IP criminal cases to familiarise prosecutors and criminal courts with this area of law.
What impact are recent data regulations such as the revised Federal Data Protection Act likely to have on companies looking to protect their IP rights in Switzerland?
The increased regulatory focus on data (in particular, personal data) creates additional challenges for the enforcement of IP rights. For example, as of 1 January 2021, WHOIS queries for ‘.ch’ domain names no longer make personal data publicly available. As a result, it is no longer possible to easily determine the holder of a domain name. Enforcing IP rights connected to domain names has become more challenging and more expensive for companies. Hopefully, the additional regulatory requirements concerning data will raise awareness of the availability and value of data within organisations and increase protection of such assets (eg, trade secrets with respect to data theft).
Legitimate rights holders face significant hurdles in protecting themselves against domain name abuse. How can these be overcome, and how could the system be improved?
Online arbitration courts have certainly proven themselves in practice, especially because they can quickly lead to mediation, are relatively inexpensive and often comprise experienced and, above all, expert judges. The main difficulties concern the enforcement of rights holders’ claims in cases involving multiple jurisdictions. International coordination in legislation as well as in law enforcement could be improved. In addition, an increased focus on data protection makes enforcement challenging. To overcome this, legislative bodies will have to (re-)assess whether the right to privacy outweighs the interest of enforcing IP rights. Moreover, the growing number of registries makes access to information difficult, and some of these registries are hard to reach (eg, due to a lack of responsiveness) and not very cooperative. There are a number of ways to address these issues (eg, increased resources for the competent authorities and/or training for their employees, and additional cooperation between the competent authorities).
As executive secretary of the Swiss Association for Intellectual Property (INGRES), what role do national IP associations play in promoting the development of IP law and how has INGRES been achieving this lately?
National IP associations such as INGRES play an essential role in the education and training not only of lawyers, patent attorneys and judges, but also of members of the administration and, to a limited extent, of students and doctoral candidates. The different players must be encouraged to exchange ideas, develop understanding for each other and work together on new solutions to legal issues instead of simply adopting the solutions of foreign legal systems without seriously questioning them. In addition, national IP associations also serve as links to international associations, thus benefitting the international exchange of views. INGRES also contributes expert opinions to national legislative procedures and advises the Swiss Parliament on the selection of part-time judges for the Swiss Federal Patent Court.
Christoph Gasser obtained a PhD from Bern University and an LLM from the University of Michigan. He heads the IP department of BianchiSchwald LLC and his practice includes IP litigation and prosecution. Mr Gasser is the executive secretary of the Swiss Association for Intellectual Property (INGRES) and an adjunct judge of the Swiss Federal Patent Court, has published substantially on intellectual property, teaches intellectual property at the Swiss Federal Institute of Intellectual Property and serves as an expert examiner for the Swiss Patent Bar examination.