Kodak decision
A Kodak decision or Kodak judgment is called a judgment of the Swiss Federal Court of December 7, 1999 ( BGE 126 III 129). The Kodak SA led trial of the Jumbo-Markt AG . This judgment was about the admissibility of parallel imports of patented products. Since there was no national or international regulation, there was a real loophole in the law within the meaning of Art. 1 Para. 2 ZGB . Following the traditional Swiss legal conception, comparative law and after weighing up the interests involved, the Federal Supreme Court decided in favor of a national exhaustion of patent rights. This means that parallel imports of goods protected by patents against the will of the patent holder are fundamentally inadmissible.
For all other intellectual property rights , an international exhaustion still applies in Switzerland.
As a result of the Kodak ruling, two provisions were added to the revision of the Antitrust Act (in force since April 1, 2004) as a corrective to the misuse of national exhaustion . In individual cases, there is therefore the possibility of parallel import of patent-protected goods. Namely, if the patent owner behaves contrary to antitrust law and invokes his patent on the basis of an agreement with another company (especially a vertical agreement ) or by misusing his dominant position and thus tries to prevent parallel imports. The owner of intellectual property rights can therefore not defend himself against parallel imports if the exercise of his exclusive right constitutes an inadmissible restriction of competition within the meaning of the Cartel Act.
Individual evidence
- ^ Website of the Federal Department of Economic Affairs ( Memento of November 24, 2007 in the Internet Archive ), Section 3
Web links
- Text of the Kodak decision: BGE 126 III 129