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Half of the 38 economies benchmarked in the US Chamber of Commerce’s annual IP index have strengthened their intellectual property systems in the US’s view

Managing IP's 2016 Global Awards dinner was held at The Savoy, London, on March 10

The tension in the relationship between patent rights and plant breeder's rights (PBR) is widely known. Recently, some EU member states have opposed the decision taken by the Enlarged Board of Appeals of the European Patent Office (EPO) in cases G2/12 and G2/13 .

With the entry into force of the Law on the Swiss Federal Patent Court (which may be expected to start operating in the first half of 2011) provisions will be introduced in the Swiss Patent Act that allow for a detailed description of patent infringing acts (saisie descriptive) as well as the seizure of goods (saisie réelle). The newly worded Article 77 of the Patent Act deals with this as follows:

Apple Inc applied to the Swiss Trade Mark Office to register the word mark IPHONE for broadly worded goods in classes 9 and 28, the specified class 9 goods being essentially telephones and functionally related products. The Office rejected the application for the class 9 goods on the grounds that the mark IPHONE will be immediately understood by consumers as describing a telephone with internet- or information technology-related functions, and accordingly represents a non-distinctive, descriptive indication.

In a recent decision, the Federal Supreme Court has confirmed some important principles that are relevant for both plaintiffs and defendants in trade mark non-use cancellation actions.

Our earlier reports have covered the injunction sought by Nestlé based on trade mark law with the Court of Commerce of St Gaul against the sale of Nespresso-compatible coffee capsules by the Swiss discounter Denner. Another action has been brought forward by Nestlé with the Court of Commerce of Zurich in this regard, but based on two patents from its portfolio for the Nespresso coffee capsule system. The subject matter of the two patents is a coffee extraction method and the capsule containing coffee as a closed package. The Zurich court found no patent infringement for both patents and denied the injunction. For the method patent the court considered that the coffee machines by which the extraction method is performed by the buyers of the machines had been brought on the market with the consent of Nestlé and thus the use of the extraction method was a lawful act performed by the buyers of the machines. Accordingly, the Court found that there can be no contributory infringement of Denner by the sale of coffee capsules to be used in such a lawful use of the machines. This conforms to Swiss law and practice regarding contributory infringement. For the patent on a coffee capsule the Court found that the Denner capsules, which are not fully closed but have holes, do not fall within the scope of the patent since these capsules do not provide optimum conservation and hygiene and a good reproducibility of the extraction. The Court considered that the Denner capsules may lose ground coffee through the holes so that the amount of coffee for the extraction may not be constant for each capsule. The Denner capsules are sold in air-tight sachets but the Court found it had not been made credible that these sachets have the same technical effect as the patented closed capsules.

The owner of a supplemental protection certificate (SPC) with duration until August 27 2011, based on the Swiss part of a European patent, suspected a manufacturer of a generic (with a marketing authorisation by Swissmedic as early as March 2010) of planning a market introduction before the expiration of the SPC. Despite enquiries by the owner of the SPC no clear information was given by the manufacturer that they would respect it. The SPC owner then requested a preliminary injunction with the Court of Commerce of Zurich.

In a recent case the defendant, Zürich Insurance Company, had sent several cease and desist letters to the plaintiffs, claiming that their company name Zürich Trust Forum and registered trade mark Zürich Trust Forum infringed the defendant's trade mark and further IP rights. The letters demanded modest amendments of these names and mark. The plaintiffs subsequently sued the defendant for a declaratory judgement holding that the plaintiffs were not infringing any rights of the defendant and did not owe any damages.

The EPO's statistics report an all-time filing high with some 234,000 new European patent applications filed in 2010. According to the EPO's website, this increase is partly a result of the economic recovery and partly a side-effect of "the EPO's introduction of new regulations which led applicants to file certain applications before the end of 2010". It is assumed that the latter comment hints at the new 24-months time limit under Rule 36(1) EPC and the associated transitional provision.