The processing of Swiss patents is controlled by the Federal Act on Patents for Inventions (PatG) of June 25, 1954, which was revised in 2012. Patents are managed by the Institute of Intellectual Property (IGE), which is based in Berne, Switzerland’s capital.
Switzerland and Liechtenstein Patent Prosecution
Liechtenstein does not have its own patent legislation, nor does it have a patent office. Instead, pursuant to the bilateral patent protection statute of 1978, patents for innovations are also managed by the IGE. Switzerland and Liechtenstein have a single region for national innovation patents as well as European patents with effect in both countries. It should also be noted that the bilateral patent protection legislation is only applicable to invention patents.
Liechtenstein, on the other hand, has its own trademark and design laws. Trademark and design applications may thus be submitted with and registered by the Liechtenstein Office of Economic Affairs‘ intellectual property department. Priority trademark applications must be filed in Liechtenstein with a private seat or a place of business in Liechtenstein. It should also be noted that, unlike Swiss trademark law, Liechtenstein trademark law does not allow for an opposition procedure. As a result, any trademark issues must be resolved by filing an action in the appropriate court.
A unitary Swiss-Liechtenstein patent may only be given, transferred, canceled, or expire in respect of the whole protected region, i.e. both Liechtenstein and Switzerland. Similarly, in the case of Liechtenstein and Switzerland, a European patent may only be given jointly. Inventors from Switzerland or Liechtenstein will submit national (Swiss) patent applications in accordance with the requirements of the federal legislation on invention patents and the relevant patent regulation.
Patents shall be awarded for novel inventions that are not evident over previous art and are economically useful (Article 1(1) of the PatG). According to PatG Articles 2 and 1a-b, certain forms of subject matter are not patentable. Specifically:
- Ideas, discoveries, business or mathematical methods, aesthetic creations, and software having no technical character
- Inventions contrary to public morality and/or policy
- Inventions covering surgical, therapeutic, or diagnostic methods used on humans or animals
- The human body in all its phases of formation and development, animal species, plant varieties, and essentially biological methods for breeding plants or animals
- Naturally occurring gene sequences and partial sequences (with the exceptions mentioned in Article 1(b) of PatG, namely sequences or partial sequences derived from naturally occurring gene sequences, if produced by means of a technical process and if a specific function is indicated)
National patent applications, unlike European patent applications, are not substantively assessed by the IGE in terms of novelty and ingenuity. The petitioner is under no need to provide prejudiced materials or other disclosures. As a result, national patents can be obtained ‘simply,’ appearing as ‘low grade’ rights. However, they imply common rights for patent holders as well as barriers for possible infringers.
In general, the issuance of a national patent may not be challenged in proceedings before the IGE.
As an exception, the PatG permits the filing of opposition within nine months following the publication of the patent’s grant if the opposition is founded on the grounds that the invention covers a specific subject matter that is not patentable, as indicated above.
The IGE’s rulings can be appealed to the Swiss Federal Patent Court, and the Swiss Federal Patent Court’s decisions can be appealed to the Swiss Federal Court.
The Swiss patent system is founded on the first-to-file principle. In the event that the same invention is filed separately by several applicants, the right to the patent goes to the applicant who either filed the earlier patent application or has the earlier priority date. If the innovation was already being commercially utilized prior to the filing date or priority date of the earlier-filed patent application, another applicant with a later filing or priority date may have the right to continued use of his or her invention.
An invention patent may be declared null and void if the owner is neither the inventor nor his or her legal successor, and there is no other legal reason why the owner should be entitled to the patent. If a patent has not yet been issued, a person who is entitled to it may bring an action for the assignment of the patent or application. Unless the original applicant behaved in bad faith, an action must be filed within two years after the patent’s publication.
After granted, a patent may be revised ex parte. A patent owner may partially abandon the patent by requesting that the IGE, in the case of national patents, or the European Patent Office, in the case of European patents, cancel or restrict an independent claim. According to the version of the patent application as submitted, the limited claim must refer to the same invention and describe an embodiment that is contained in the specification of the published patent.
You can find the list of Switzerland IP Firms here.