Mark Schweizer
GRUR 2021, 361-365
Publication year: 2021

German doctrine and case law on patent infringement by equivalent means has heavily influenced Swiss practice, with one important difference. Similar to the UK Supreme Court’s approach in Actavis v. Eli Lilly, the Swiss Federal Patent Court assesses whether it was obvious to the skilled person that the variant and the claimed feature fulfil the same function from an ex post perspective, i.e., knowing that the feature has been replaced. This contribution to the Festschrift Meier-Beck explains the Swiss approach to determining a patent’s scope of protec-tion and wonders whether it succeeds in striking a balance between fair protection for the patentee and a reasonable degree of certainty for third parties.

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