Facts
Kodak SA (plaintiff) is the holder of Swiss patent EP 0 028 099 (Kodak color negative films) and has the exclusive distribution of Kodak products in Switzerland. Jumbo Markt AG (defendant) also sells Kodak Gold 200 color negative films and Kodak Gold 400 disposable cameras from the United Kingdom, which are covered by patent EP 0 028 099. The plaintiff has sued the defendant to prohibit the sale of these parallel imported products.Considerations
The Federal Tribunal considers that the issue of allowing parallel imports in patent law is not regulated in either national legislation or applicable international law in Switzerland. The traditional Swiss legal concept, comparative law, as well as a weighing of the interests involved, argue in favor of the principle of national exhaustion of patent rights.
The Federal Tribunal notes that the differences between trademark and copyright law on the one hand and patent law on the other do not require treating the issue of exhaustion in the same way. Patent law aims to reward the inventor for the disclosure of their invention, which justifies a more limited protection over time than copyright. Furthermore, the function of a patent, which is to allow the inventor to recoup their investment, differs from that of a trademark or copyright.
From a comparative law perspective, the vast majority of states apply the principle of national exhaustion in patent law, which is extended at the regional level within the European Economic…