Insight

Protect Your Intellectual Property From Patent Trolls

Michael Ritscher discusses how he advises clients to better protect their trade secrets.

An Interview With Meyerlustenberger Lachenal
Best Lawyers

Best Lawyers

January 3, 2020 08:00 AM

This interview was conducted as part of the 2020 Edition of The Best Lawyers in Switzerland “Law Firm of the Year” award recognitions. Our partner Handelsblatt, also published these awards on June 27, 2019, online and in print in their June 2019 edition.

From Meyerlustenberger Lachenal Ltd.—Switzerland's 2020 “Law Firm of the Year” in Intellectual Property Law—Michael Ritscher joins Phillip Greer, CEO of Best Lawyers, to discuss how their firm advises clients to protect their intellectual property better and the importance of filing patent applications.

Trade secrets have become an area of discussion in recent years. It's been one of the points of contention in the US-China trade war. How prevalent is theft of trade secrets and what do you advise clients to do to better protect info?

Michael Ritscher: I am following the development worldwide very closely, both as head of our IP & IT litigation team as well as president of INGRES, which is the most active IP association in Switzerland. I'm chairing several conferences and I'm responsible for the concept of these conferences—two of them being international conferences.

I have started including trade secrets into the patent part of these international conferences. I'm very aware of the importance of the topic in the U.S., and in the E.U. up to now, and the new directives and regulations on trade secrets.

In Switzerland, however, this topic has not really touched the courts. There are basically no cases yet which indicates a shift of the approaches taken. Our recommendation to our clients is to increase their awareness.

Many small and mid-sized companies are just not aware of the fragility of trade secrets and are behaving in a very naive way, basically assuming that nobody's interested in what they're doing. They are not aware of the technical means which are available these days to systematically search and collect valuable data from industry.

Awareness is our point number one. Point number two, we advise our clients to implement technical protection. Technical means protection of barriers to entry and security control; making sure that confidential, valuable information is put in two places where access is difficult and controlled.

Measure number three is to clearly mark everything—what is valuable or potentially valuable—as confidential. Because in the Swiss courts, if it comes to patent or unfair competition disputes, they look heavily to what extent the alleged owner or the owner of alleged trade secrets considers to be secret. Under Swiss law, we differentiate between objective and subjective confidentiality. So even if something is objectively confidential, if the owner of the information does not consider it to be valuable then we might have a problem.

Number four is one of my favorite topics. I don't believe in nondisclosure agreements because I'm involved very often as a litigator in court and arbitration proceedings. But I’m also an arbitrator in cases where there is a dispute about nondisclosure agreements. Almost always the reason for the dispute is the lack of the object of the agreement.

I strongly advise clients if they insist on having an NDA to clearly identify the object of confidentiality. The next step, which is the alternative to NDAs, is if you do the work, if you really try to define what the trade secret is, why not file a patent application? The additional costs are marginal. And the client then, as you know, has 18 months within, which they can decide if they want to have the application published or not. If they don't want to have the information application published, then they can withdraw the application. If they want to go forward, they can continue the patent route and get a patent. At least in a selected number of territories, which are very important for the business.

I don't believe too much in trade secret protection as provided by the law and really strongly advise, personally, in favor of filing patent applications.

Some people believe that patent trolls are becoming a significant problem, especially in the technology space. What has been your experience with that?

Being a lawyer, you will not be surprised to hear that “it all depends,” is the answer. On the definition of a troll, people are trying to avoid this term and use non-practicing entities instead. But even this notion is not really clear because evidently a troll has a polemic connotation that indicates that somebody is doing something terribly bad or even illegal. I think in the end it's really a question of validity. Talking about patents now, not copyright or trademark trolls, which also exist.

But about patent trolls, I think it's all about if there is a valid patent that is infringed. If validity is examined thoroughly, and if the infringement is examined thoroughly, and if a legal authority comes to the conclusion that a valid patent has been infringed, I think one should not look too much at the background of the owner. Personally, I am a defender of injunctions. I think if there is a valid patent that has been infringed, there must be an injunction. There are exceptions evidently in the area of telecom patents, standard essential patents. This is a huge problem, and I follow very closely the development, the new ideas about coming up with collecting societies or standard-essential patents. So I'm following this closely.

As to Switzerland, however, we have not had one single case yet except one where my team, our team, has been involved where we represented a non-practicing entity. In that case, I can assure you this was by no means a troll. He has a patent, and it has been examined by the Swiss patent courts; it was considered to be valid. It was considered to be infringed. I don't see why one should not give this patentee the right, which he deserves according to the law.

This patent troll development or phenomenon, in particular in Europe, is basically focused on big markets. If you look at the patent portfolios of the so-called patent trolls in the telecom business, most of them are not validated in Switzerland.

This shows that Switzerland is probably not an interesting market enough, business-wise. Maybe also because of what I said before, that different from Germany, a patentee, if he wants to enforce the patent, has to undergo a serious examination as to the validity by the same court which also examines infringement. In Germany, so-called infringement courts are much faster and patentee friendly than the court, the patent court, which is the court responsible for the assessment of validity. That's why I think, in particular, in Germany, this is a phenomenon which has to be taken seriously, but in Switzerland, this has not really, so far, become a serious problem.

So fake goods have always been around, but they seem to thrive in the eCommerce environment. What strategies have you used for your clients to protect them?

Very traditionally, we try to stop at the source where the counterfeit products are manufactured, which is quite difficult because this is very often China. It's difficult to enforce IP rights in China. Second, we are quite successfully using border seizures, i.e., to stop the counterfeit from exporting or from importing. So use border instruments for the seizure mechanisms and personnel.

We are doing a lot of international work, as you see, for, in particular, Swiss clients but also for foreign clients. Because we have acquired huge experience in IP, not only in Switzerland but also in other jurisdictions. So seizures on trade fairs are usually very effective and not expensive and have a deterrent effect in many cases. Then, takedowns are usually run by the clients themselves. So usually, we advise clients to do it themselves because this is less expensive and they usually prefer doing it in-house.

And last but not least, and most importantly, we have started for clients to enforce IP rights against intermediaries. We have filed suit against Google because of Google shopping based on the trademark rights of our client recently in Germany. We're still waiting for the statement of claim to be served upon Google. As you know Google is not domicile of Germany, so serving has to take place in the U.S., which takes a couple of weeks. But we're quite optimistic that we are going to get, not only an injunction in this case, but also very sure is the amount of money, and we'll see how Google will react on that.

This interview has been edited for length and clarity.

Related Articles

Property Protectors


by Best Lawyers

Georg Schönherr and Thomas Adocker discuss the theft of trade secrets, patent infringement, and strategies to combat fake goods.

An Interview With Schwarz Schönherr Rechtsanw

Learn How to Value Your Company's IP Portfolio as a Source of Income with Patent Scorecarding


by Troy A. Groetken

It’s imperative that intellectual property counsel, especially those responsible for the protection of innovation in the electrical, chemical, pharmaceutical and life-science arenas, regularly audit their company’s IP portfolio. Here’s the best way to do it.

Intellectual Property Scorecarding Benefits

What Entrepreneurs Should Know About Intellectual Property


by Todd Fichtenberg

With the growing rates of entrepreneurs and startups during 2020, applications for EINs and intellectual property protections should grow proportionately.

Business Owners And Intellectual Property

The State of Women Inventors


by Amanda Hermans and Kate Rockwood

What’s being done to improve the gender patent gap—and how attorneys can help.

How to Improve the Gender Patent Gap

A Studied Neutrality


by Best Lawyers

Marcel Meinhardt discusses a new interpretation in competition law, new challenges as technology advances more and more, and other topics.

An Interview With Lenz & Staehelin

How Technological Advances Can Help Corporate Law


by Best Lawyers

Dieter Gericke and Benjamin Leisinger discuss how being aware of technological advances helps them provide corporate financial advice.

An Interview With Homburger

Announcing 15th Edition of The Best Lawyers in Switzerland™


by Best Lawyers

Best Lawyers is proud to share the 15th edition of The Best Lawyers in Switzerland™, featuring an elite list of rankings that showcases Swiss legal excellence.

Swiss flag in front of the country's outline

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Announcing the 2024 Best Lawyers in Switzerland


by Best Lawyers

The results highlight the top lawyers and firms in Switzerland, including the 14th edition of The Best Lawyers in Switzerland™ and the 2024 “Law Firm of the Year” recipients.

Bridge over water with skyline of town in Switzerland and blue sky in background

Announcing The Best Lawyers in Switzerland™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Switzerland.

Red flag with white cross

Anna Inventing: The Importance of Diversity in Innovation


by Emily C. Peyser

A patent from 1887 by female inventor Anna Connelly not only revolutionized fire safety, but highlighted the need for diversity in innovation. Our world is facing big problems that need diverse voices at the table to find solutions that work for everyone. Building diverse teams and encouraging diversity in innovation is a beneficial step forward in resolving our collective challenges.

Diversity in Innovation and Technology

Staunch Competition


by Andrea E. Nieto, Catherine H. Molloy, and Jennifer W. Corinis

On the other side of the pandemic, after record numbers of employee resignation, protecting trade secrets is both challenging and being challenged.

Protecting Trade Secrets During Period of Res

Announcing the 2022 Best Lawyers™ in Switzerland


by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Switzerl

Anthony M. Insogna - San Diego 2021 Lawyer of the Year


by Best Lawyers

Litigation - Intellectual Property San Diego, California

Anthony M. Insogna

Too Good to Fail


by Best Lawyers

Sandro Abegglen discusses new regulations after financial crises, corruption, and more.

An Interview With Niederer Kraft Frey

From Russia, With Law


by Best Lawyers

The bite of U.S. sanctions aside, Cleary Gottlieb partner Yulia Solomakhina sees great promise for commerce and the law as Russia increasingly embraces markets and technology.

An Interview With Cleary Gottlieb

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background