The Federal Council wants to strengthen the Swiss patent
Bern, 16.11.2022 - The Patents Act is to be adapted to international standards and the Swiss patent system is to be made more attractive to SMEs and individual inventors, in particular. They will be able to choose the patent examination procedure that suits their needs and resources. At its meeting on 16 November 2022, the Federal Council adopted the dispatch on the partial revision of the Patents Act for submission to Parliament.
Technical inventions can be protected by a patent for up to 20 years, as long as they are new, inventive and industrially applicable. Unlike the patent offices of many other countries, the Swiss Federal Institute of Intellectual Property (IPI) does not examine novelty and inventive step when granting patents. As a result, the validity of a Swiss patent remains uncertain. Those who want to be sure that their invention can be protected therefore choose the option of a fully examined European patent with protection extended to Switzerland. This is a complex and costly process, particularly for small and medium-sized enterprises (SMEs) exclusively interested in national patent protection.
More transparency and legal certainty with obligatory search
It is for this reason that the Federal Council wants to increase the value of the Swiss patent. In future, the IPI is to carry out a search for each patent application to establish the state of the art in the field of the invention. The results will be published, which will allow all interested parties to estimate whether the invention is eligible for patent protection. This will increase transparency and legal certainty for applicants and third parties.
The search results will also be a good basis for innovators to make decisions about their next steps. For example, they could amend or withdraw their patent application if it does not fulfil the requirements for patentability. This is why many applicants already carry out such searches voluntarily. Even with the added search, the partially examined patent should continue to be an inexpensive and easily obtainable IP right.
Full examination upon request
In line with international standards, applicants will be able to request the IPI to examine their application for all patentability requirements. The patent will only be granted if the invention is actually innovative. This will increase legal certainty and enforceability. The fully examined national patent will offer SMEs and individual inventors, in particular, an equivalent, convenient and lower-cost alternative to the European patent.
Streamlined recourse to the Federal Patent Court
Applicants and third parties, such as associations, can appeal against decisions made by the IPI. In future, these appeals are to be judged by the Federal Patent Court, which already has jurisdiction over civil disputes in patent matters, instead of the Federal Administrative Court. The Federal Patent Court has the necessary specialist knowledge to conduct the often complex appeal procedure.
At the same time, the IPI's opposition procedure will be discontinued. If, in future, someone thinks that a patent has been unfairly granted, they will be able to submit an appeal directly to the Federal Patent Court. This will streamline the appeal procedure.
New Patents Act takes consultation requests into account
The partial revision of the Patents Act was initiated by the motion ‘In favour of a modern Swiss patent', approved by the Federal Assembly on 12 December 2019. The motion called for every patent application to be fully examined and for an unexamined utility model to be introduced as an inexpensive alternative. The consultation showed, however, that the partially examined patent is well regarded and, instead of it being abolished, a flexible patent examination is what is wanted. Following the consultation, the Federal Council adapted the preliminary draft accordingly.
Address for enquiries
Alexander Pfister, Head of Legal Services - Industrial Property Rights, Swiss Federal Institute of Intellectual Property (IPI), T +41 31 377 74 88, firstname.lastname@example.org