Facts
Company [Y.] holds three Swiss patents on manufacturing processes for the antibiotic doxycycline. Company X. has been marketing a pharmaceutical product containing doxycycline since 1983. [Y.] sued X. to cease the distribution of doxycycline or products containing it, on the grounds that X. was infringing its patents. The Commercial Court of the Canton of Zurich granted Y.'s request for the duration of validity of two of its patents, unless the doxycycline originated from [Y.] or was manufactured using a process not covered by the patents. X. appealed against this judgment.Considerations
The Federal Supreme Court partially upholds X.'s appeal. The presumption of a risk of repeated infringement, derived by the Commercial Court from the prior infringement of Y.'s patents, is in principle admissible. However, the Federal Supreme Court considers that the prohibition imposed by the Commercial Court goes too far, in that it imposes the burden of proof on X. for any future marketing of doxycycline. Indeed, Art. 67(2) PatA does not reverse the burden of proof, but merely relaxes the evidentiary requirements for the patent holder. The latter must…