1
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Federal Act on Patents for Inventions (Patents Act, PatA)1
of 25 June 1954 (Status as of 1 January 2012)
The Federal Assembly of the Swiss Confederation, on the basis of Articles 64 and 64bis of the Federal Constitution2,3 and having considered the Dispatch of the Federal Council dated 25 April 19504 and a Supplementary Dispatch dated 28 December 19515, decrees:
First Title: General Provisions Section 1: Requirements for Obtaining a Patent and Effects of the Patent
Art. 1 1 Patents for inventions are granted for new inventions applicable in industry. 2 Anything that is obvious having regard to the state of the art (Art. 7 para. 2) is not patentable as an invention.7 3 Patents are granted without the guarantee of the State.8
AS 1955 871 1 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995
(AS 1995 2879; BBl 1993 III 706). 2 [BS 1 3]. The provisions referred to now correspond to Art. 122 and 123 of the Federal
Constitution of 18 April 1999 (SR 101). 3 Amended by Annex No 11 of the Civil Jurisdiction Act of 24 March 2000, in force since
1 Jan. 2001 (AS 2000 2355; BBl 1999 2829). 4 BBl 1950 I 977 5 BBl 1952 I 1 6 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act
revising the European Patent Convention and on the amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BB1 2005 3773).
7 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act revising the European Patent Convention and on the amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BB1 2005 3773).
8 Amended by No I of the Federal Act of 17 Feb. 1976, in force since 1 Sept. 1978 (AS 1977 1997; BBl 1976 II 1).
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A. Patentable inventions I. Principle6
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Art. 1a9 1 The human body as such, at all stages of its formation and develop- ment, including the embryo, is not patentable. 2 Elements of the human body in their natural environment are not patentable. An element of the human body is, however, patentable as an invention if it is produced by means of a technical process, a bene- ficial technical effect is indicated and the further requirements of Article 1 are fulfilled; Article 2 remains reserved.
Art. 1b10 1 A naturally occurring sequence or partial sequence of a gene is not patentable as such. 2 Sequences that are derived from a naturally occurring sequence or partial sequence of a gene may, however, be patented as an invention if they are produced by means of a technical process, their function is specifically indicated, and the further requirements of Article 1 are fulfilled; Article 2 remains reserved.
Art. 211 1 Inventions whose exploitation is contrary to human dignity or that disregard the integrity of living organisms or that are in any other way contrary to public policy or morality are not patentable. In particular, no patent may be granted for:
a. processes for cloning human beings and the clones obtained thereby;
b. processes for forming hybrid organisms by using human germ cells, human totipotent cells or human embryonic stem cells and the entities obtained thereby;
c. processes of parthenogenesis by using human germinal mate- rial and the parthenogenetic entities obtained thereby;
d. processes for modifying the germ line genetic identity of hu- man beings and the germ line cells obtained thereby;
e. unmodified human embryonic stem cells and stem cell lines; f. the use of human embryos for non-medical purposes;
9 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22. June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
10 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551 2567; BBl 2006 1).
11 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
II. The human body and its elements
III. Gene sequences
B. Exclusion from patentabil- ity
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g. processes for modifying the genetic identity of animals which are likely to cause them suffering without being justified by overriding interests worthy of protection, and also animals re- sulting from such processes;
2 Also excluded from patentability are: a. methods for treatment by surgery or therapy and diagnostic
methods practised on the human or animal body; b. plant varieties and animal varieties or essentially biological
processes for the production of plants or animals; however, subject to the reservation of paragraph 1, microbiological or other technical processes and the products obtained thereby as well as inventions that concern plants or animals are pat- entable provided that their application is not technically con- fined to a single plant or animal variety.
Art. 3 1 The inventor, his successor in title, or a third party owning the inven- tion under any other title has the right to the grant of the patent. 2 Where several inventors have made an invention jointly, they have this right jointly. 3 Where two or more inventors have made the invention independently of each other, the person who makes the earlier application or whose application has the earliest priority date has this right.
Art. 4 In the procedure before the Swiss Federal Institute of Intellectual Property (the Institute),12 the patent applicant is deemed entitled to request the grant of the patent.
Art. 5 1 The patent applicant must provide the Institute with written confir- mation of the name of the inventor.13 2 The person named by the patent applicant shall be mentioned as the inventor in the Patent Register, in the publication of the patent appli- cation and in the grant of the patent, as well as in the patent specifica- tion.14
12 Term in accordance with No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633). This amendment has been taken into account throughout the Act.
13 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
14 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
C. Right to the grant of a patent I. Principle
II. In the examination procedure
D. Mention of the inventor I. Right of the inventor
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3 Paragraph 2 applies by analogy if a third party produces an enforce- able judgment establishing that he and not the person named by the patent applicant is the inventor.
Art. 6 1 If the inventor named by the patent applicant waives his right to the measures provided for in Article 5 paragraph 2, these measures shall not be taken. 2 A declaration made beforehand by the inventor waiving the right to be mentioned as such has no legal effect.
Art. 715 1 An invention is considered to be new if it does not form part of the state of the art. 2 The state of the art comprises everything made available to the public by means of a written or oral description, by use, or in any other way prior to the filing or priority date. 3 With regard to novelty, the state of the art also includes the content of an earlier application or application with earlier priority designating Switzerland in the version originally filed, and with a filing or priority date that precedes the date mentioned in paragraph 2, and which was only made available to the public on or after that date, provided that:
a. in the case of an international application, the requirements of Article 138 are fulfilled;
b. in the case of a European application based on an international application, the requirements of Article 153 paragraph 5 of the European Patent Convention of 5 October 1973 in its revised version of 29 November 200016 are fulfilled;
c. in the case of a European application, the fees for the valid designation of Switzerland as per Article 79 paragraph 2 of the European Patent Convention of 5 October 1973 in its revised version of 29 November 2000 have been paid. 17
15 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
16 SR 0.232.142.2 17 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
II. Waiver of mention
E. Novelty of the invention I. State of the art
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Art. 7a18
Art. 7b19
Where the invention has been made available to the public in the six months prior to the application date or priority date, this disclosure does not form part of the state of the art when it is due to, or a conse- quence of:20
a. an evident abuse in relation to the patent applicant or his legal predecessor, or
b. the fact that the patent applicant or his legal predeces- sor has displayed the invention at an official or offi- cially recognised international exhibition falling within the terms of the Convention on International Exhibitions of 22 November 192821, and he has de- clared the fact at the time of filing and has produced sufficient supporting evidence in due time.
Art. 7c22
Any substance or composition that forms part of the state of the art as such, but not in relation to its use in a surgical, therapeutic or diagnos- tic method specified in Article 2 paragraph 2 letter a23 is deemed to be new provided it is intended solely for such use.
Art. 7d24
Any substance or composition that forms part of the state of the art as such, but not in relation to a specific use in a surgical, therapeutic or
18 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
19 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
20 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
21 SR 0.945.11 22 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1).
Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
23 Rectified by the Editorial Commission of the Federal Assembly (Art. 58 para. 1 ParlA – SR 171.10).
24 Inserted by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act revising the European Patent Convention and on the amendment of the Patents Act (AS 2007 6479; BB1 2005 3773). Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
II. …
III. Non- prejudicial disclosures
IV. New use of known substances a. First medical use
b. Further medical uses
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diagnostic method specified in Article 2 paragraph 2 letter a25 that is distinct from the first medical use specified in Article 7c is deemed to be new provided it is intended for use in the manufacture of a means to a surgical, therapeutic or diagnostic end.
Art. 826 1 The patent confers on its proprietor the right to prohibit others from commercially using the invention. 2 Use includes, in particular, manufacturing, storage, offering, placing on the market, importing, exporting and carrying in transit, as well as possession for any of these purposes. 3 Carrying in transit may only be prohibited if the proprietor of the patent is permitted to prohibit importation into the country of destina- tion.
Art. 8a27 1 If the invention concerns a manufacturing process, the effects of the patent also extend to the products directly obtained by that process. 2 If the products directly obtained by the process concern biological material, the effects of the patent also extend to products obtained by propagating the biological material and which demonstrate the same characteristics. Article 9a paragraph 3 remains reserved.28
Art. 8b29
If the invention concerns a product that consists of or contains genetic information, the effects of the patent extend to any material in which the product is incorporated and in which the genetic information is contained and performs its function. Article 1a paragraph 1 and 9a paragraph 3 remain reserved. 30
25 Rectified by the Editorial Commission of the Federal Assembly (Art. 58 para. 1 ParlA – SR 171.10).
26 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
27 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
28 Second sentence inserted by No I of the Federal Act of 19 Dec. 2008, in force since 1 July 2009 (AS 2009 2615; BBl 2008 303).
29 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
30 Second sentence amended in accordance with No I of the Federal Act of 19 Dec. 2008, in force since 1 July 2009 (AS 2009 2615; BBl 2008 303).
F. Effects of the patent I. Right of exclusivity
II. Manufactur- ing process
III. Genetic information
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Art. 8c31
The protection conferred by a claim to a nucleotide sequence that is derived from a naturally occurring sequence or partial sequence of a gene is limited to the sequence segments that perform the function specifically described in the patent.
Art. 932 1 The effects of the patent do not extend to:
a. acts undertaken within the private sphere for non-commercial purposes;
b. acts undertaken for research or experimental purposes in order to obtain knowledge about the subject-matter of the invention including its uses; in particular, any scientific research con- cerning the subject-matter of the invention is permitted;
c. acts necessary for obtaining marketing authorisation for a me- dicinal product in Switzerland or in countries with equivalent medicinal product control;
d. the use of the invention for teaching purposes at educational institutions;
e. the use of biological material for the purpose of the production or the discovery and development of a plant variety;
f. biological material that is obtained in the field of agriculture due to chance or is technically unavoidable.
2 Agreements which limit or revoke the powers contained in para- graph 1 are null and void.
Art. 9a33 1 If the proprietor of the patent has placed patent-protected goods on the market in Switzerland or within the European Economic Area, or consented to their placing on the market in Switzerland or within the European Economic Area, these goods may be imported and used or resold commercially in Switzerland. 2 If he has placed apparatus that can be used with a patent-protected process on the market in Switzerland or within the European Eco- nomic Area, or consented to its placing on the market in Switzerland
31 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
32 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
33 Inserted by No I of the Federal Act of 22 June 2007 (AS 2008 2551; BBl 2006 1). Amended by No I of the Federal Act of 19 Dec. 2008, in force since 1 July 2009 (AS 2009 2615; BBl 2008 303).
IV. Nucleotide sequences
G. Exceptions to effects of the patent I. In general
II. In particular
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or within the European Economic Area, the first and each subsequent person who acquires the apparatus is entitled to use this process. 3 If the proprietor of the patent has placed patent-protected biological material on the market in Switzerland or within the European Eco- nomic Area, or consented to its placing on the market in Switzerland or within the European Economic Area, this material may be imported and propagated in Switzerland, provided this is necessary for its intended use. The material so obtained may not be used for further propagation. Article 35a remains reserved. 4 If the proprietor of the patent has placed patent-protected goods on the market outside the European Economic Area or consented to their placing on the market outside the European Economic Area und if the patent protection for the functional characteristics of the goods is only of subordinate importance, the goods may be imported commercially. Subordinate importance is presumed unless the proprietor of the patent provides prima facie evidence to the contrary. 5 Irrespective of the provisions of paragraphs 1–4, the consent of the proprietor of the patent for the placing on the market of patent- protected goods is reserved if their price in Switzerland or in the country in which they are placed on the market is fixed by the state.
Art. 1034
Art. 11 1 Products that are protected by a patent, or their packaging, may be marked as being patented with the Federal Cross and the number of the patent. The Federal Council may prescribe additional indica- tions.35 2 The proprietor of the patent may require any prior user or any licen- see to affix the patent mark on the products manufactured by them or on the packaging of such products. 3 If the prior user or licensee does not comply with the requirement of the proprietor of the patent, he is liable to the latter for any resulting losses without prejudice to the proprietor’s right to require the use of the patent mark.
Art. 12 1 Any person who issues or offers for sale his business papers, notices of any kind, products or goods bearing any other notice referring to
34 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 35 Amended by No I of the Federal Act of 17 Feb. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1).
H. Marking of patented products I. Patent mark
II. Other markings
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patent protection must inform any third party on request of the number of the patent application or the patent to which the notice refers. 2 Any person who accuses third parties of infringing his rights or warns them against such infringement must, on request, give them the same information.
Art. 1336 1 Any person who is involved in administrative proceedings provided for in this Act and does not have a residence or principle place of business in Switzerland, must designate an address for service in Switzerland. An address for service in Switzerland is not required for:37
a. filing a patent application for the purpose of being accorded a filing date;
b. paying fees, filing translations and filing and handling requests after the grant of the patent, in so far as the requests do not give rise to any objections.38
2 The provisions concerning the practice of the profession of attorney remain reserved.
Art. 14 1 The maximum term of the patent is 20 years from the filing date of the application.39 2 …40
Art. 15 1 The patent lapses:
a. if the proprietor surrenders it by written declaration to the In- stitute;
b. if a renewal fee that has become due is not paid within the pre- scribed time.41
2 …42
36 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Sept. 1978 (AS 1977 1997; BBl 1976 II 1).
37 Amended by Annex No 3 of the Patent Attorney Act of 20 March 2009, in force since 1 July 2011 (AS 2011 2259; BBl 2008 407).
38 Amended by Art. 2 of the Federal Decree of 22 June 2007, in force since 1 July 2008 (AS 2008 2677; BBl 2006 1).
39 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
40 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 41 Amended by No I of the Federal Act of 17 Feb. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1).
J. Residence abroad
K. Term of patent I. Maximum term
II. Premature lapse
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Art. 1643
Patent applicants or proprietors who are Swiss nationals may rely on the provisions of the binding text for Switzerland of the Paris Conven- tion for the Protection of Industrial Property of 20 March 1883,44 where those provisions are more favourable than the provisions of this Act.
Section 2: Right of Priority
Art. 17 1 Where an invention is the subject of a regular filing of an application for a patent for an invention, a utility model or an inventor's certifi- cate, and where the filing takes place in or with effect in a country that is a party to the Paris Convention for the Protection of Industrial Property of 20 March 188346 or the Agreement Establishing the World Trade Organization of 15 April 199447, (Appendix 1C, Agreement on Trade-Related Aspects of Intellectual Property Rights), it shall give rise to a right of priority in accordance with Article 4 of the Paris Convention. This right may be claimed for a patent application filed in Switzerland for the same invention within 12 months from the date of the first filing.48 1bis The first filing in a country that grants reciprocity to Switzerland has the same effect as the first filing in a country that is party to the Paris Convention for the Protection of Industrial Property.49 1ter Except as otherwise provided by this Act or by the Ordinance, paragraph 1 above and Article 4 of the Paris Convention for the Pro- tection of Industrial Property of 20 March 1883 apply by analogy to a first filing in Switzerland.50
42 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 43 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 44 SR 0.232.01/.04 45 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 46 SR 0.232.01/.04 47 SR 0.632.20 48 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to
Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BB1 2005 3773).
49 Inserted by No I of the Federal Act of 17 Feb. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
50 Inserted by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
L. Reservation
A. Conditions and effects of priority45
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2 The effect of the priority right is that the application may not be prejudiced by any circumstances that have arisen since the date of the first filing.51 3 …52
Art. 18 1 …54 2 The right of priority may be claimed by the first applicant or the person who has acquired the right belonging to the first applicant to file a patent application in Switzerland for the same invention.55 3 If the first filing, the filing in Switzerland or both were effected by a person who was not entitled to the grant of the patent, the entitled person may claim the priority deriving from that first filing.56
Art. 1957 1 Any person claiming a right of priority must file a declaration of priority and a priority document with the Institute. 2 The right of priority is forfeited if the time limits and formal re- quirements laid down by the Ordinance are not complied with.
Art. 20 1 Acceptance of a priority claim in the procedure for the grant of the patent does not relieve the proprietor of the patent of the obligation to prove the existence of such right in the case of legal proceedings. 2 The filing on the basis of which priority is claimed is presumed to be the first filing (Article 17 para. 1 and 1bis).58
51 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Sept. 1978 (AS 1977 1997; BBl 1976 II 1).
52 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 53 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 54 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 55 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 56 Amended by No I of the Federal Act of 17 Dec.1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 57 Amended by No I of the Federal Act of 17 Dec.1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 58 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1. Jan. 1978
(AS 1977 1997; BBl 1976 II 1).
B. Entitlement to claim the right of priority53
C. Formal requirements
D. Burden of proof in legal proceedings
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Art. 20a59
Where an inventor or his successor in title has obtained two patents with the same filing date or priority date for the same invention, the effects of the patent based on the earlier application cease insofar as the scope of protection afforded by the two patents is the same.
Art. 21-2360
Section 3: Modifications concerning the Validity of the Patent
Art. 2461 1 The proprietor of the patent may partially surrender the patent by requesting the Institute to:
a. revoke a patent claim (Art. 51 and 55); or b. limit an independent claim by combining one or more patent
claims, which are dependent on it; or c. limit an independent claim in some other way; in such cases,
the limited claim must refer to the same invention and define an embodiment that is included in the specification of the pub- lished patent and in the version of the patent application that determined the date of filing.
2 …62
Art. 2563 1 If, as a result of a partial surrender, patent claims remain that may not exist in the same patent in accordance with Articles 52 and 55, the patent shall be limited accordingly. 2 The proprietor of the patent may apply for the issue of one or more new patents to cover the dropped patent claims; such new patents are given the filing date of the original patent.
59 Inserted by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BB1 1993 III 706).
60 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 61 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 62 Repealed by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to
Revise the European Patent Convention and on the Amendment of the Patents Act, with effect from 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
63 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
E. Prohibition of double patenting
A. Partial surrender I. Conditions
II. Issue of new patents
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3 Following registration of the partial surrender in the Patent Register, the Institute shall set a time limit for the proprietor of the patent to apply for the issue of new patents in accordance with paragraph 2; after this time limit has expired, an application is no longer accepted.
Art. 26 1 The court shall, on application, declare the nullity of the patent if:
a. the subject-matter of the patent is not patentable under Arti- cles 1, 1a, 1b and 2;
b. the invention is not described in the patent specification in a manner sufficiently clear and precise for it to be carried out by a person skilled in the art;
c. the subject-matter of the patent goes beyond the content of the patent application in the version that determined the filing date;
d. the proprietor of the patent is neither the inventor nor his suc- cessor in title, nor has a right to the grant of the patent on other legal grounds.64
2 Where a patent is granted with recognition of priority, and the appli- cation claiming the priority does not lead to a patent, the court may require the proprietor of the patent to state the grounds and to present evidence; if the information is withheld, the court has full discretion in its judgment of this.65
Art. 27 1 Where a ground for nullity applies to only a part of the patented invention, the court shall limit the patent accordingly. 2 The court shall give the parties an opportunity to be heard on the proposed new version of the patent claim; it may also request the opinion of the Institute. 3 Article 25 applies by analogy.
Art. 2866
Any person with a proven interest may bring a nullity action, with the exception of an action under Article 26 paragraph 1 letter d, which may be brought only by an entitled person.
64 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
65 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
66 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
B. Nullity action I. Grounds for nullity
II. Partial nullity
III. Right of action
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Art. 28a67 The effects of the granted patent shall be deemed not to have occurred from the outset insofar as the proprietor of the patent surrenders the patent or the court declares the nullity of the patent based on a nullity action.
Section 4: Modifications concerning the Right to the Grant of the Patent and the Right to the Patent; Grant of Licences
Art. 29 1 When the patent application has been filed by an applicant who, under Article 3, is not entitled to the grant of the patent, the entitled person may apply for assignment of the patent application or, if the patent has already been granted, he may apply for assignment of the patent or file an action for nullity. 2 …68 3 If an assignment is ordered, licences or other rights granted to third parties in the intervening period lapse; however, if they have used the invention commercially in Switzerland in good faith or have made special preparations to do so, these third parties are entitled to be granted a non-exclusive licence.69 4 Any claims for damages are reserved. 5 Article 40e applies by analogy.70
Art. 30 1 If the plaintiff cannot prove his right to all claims of the patent, assignment of the patent application or of the patent shall be subject to the deletion of the patent claims to which the plaintiff has not proved his right.71 2 Article 25 applies by analogy.
67 Inserted by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
68 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 69 Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995
(AS 1995 2606; BBl 1994 IV 950). 70 Inserted by No I of the Federal Act of 16 Dec. 1994 (AS 1995 2606; BB1 1994 IV 950).
Amended by No I of the Federal Act of 22. Juni 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
71 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1997 1997; BBl 1976 II 1).
C. Effects of the modification of the validity of the patent
A. Action for assignment I. Conditions and effects against third parties
II. Partial assignment
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Art. 31 1 An action for assignment must be filed within two years from the official date of the publication of the patent specification. 2 An action against a defendant acting in bad faith has no filing dead- line.
Art. 32 1 Where public interest so dictates, the Federal Council may expropri- ate all or part of the patent. 2 The former proprietor of an expropriated patent is entitled to full compensation which, in the event of any dispute, is fixed by the Fed- eral Supreme Court; the provisions of Section II of the Compulsory Purchase Act of 20 June 193072 apply by analogy.
Art. 33 1 The right to the grant of the patent and the right to the patent passes to the heirs; these rights may be assigned to third parties either wholly or in part. 2 Where the said rights are owned by two or more persons, each enti- tled person may exercise the rights only with the consent of the others; however, each one may independently dispose of his part or bring an action for infringement of the patent. 2bis The transfer of a patent application and of the patent by legal act is valid only if evidenced in writing.73 3 A patent may be transferred without the transfer being recorded in the Patent Register; however, until an entry is made, any action pro- vided for in this Act may be taken against the former proprietor of the patent. 4 Rights of third parties not recorded in the Patent Register are invalid against persons who have acquired the rights to the patent in good faith.
Art. 34 1 The patent applicant or the proprietor of the patent may grant third parties the right to use the invention (grant of licences). 2 Where the patent application or the patent is owned by two or more persons, a licence may not be granted without the consent of all enti- tled persons.
72 SR 711 73 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BB1 1976 II 1).
III. Deadline for filing an action
B. Expropriation of the patent
C. Transfer of the right to the grant of the patent and of the right to the patent
D. Grant of licences
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3 Licences of third parties not recorded in the Patent Register are invalid against persons who have acquired in good faith the rights to the patent.
Section 5: Legal Restrictions on Rights conferred by the Patent
Art. 35 1 A patent may not be invoked against any person who, prior to the filing or priority date of the patent application, was commercially using the invention in good faith in Switzerland or had made special preparations for that purpose.74 2 Any such person under paragraph 1 may use the invention for the purposes of their trade or business; this right may be transferred or bequeathed only together with the trade or business. 3 A patent has no effect with regard to vehicles which are only tempo- rarily in Switzerland, nor to equipment attached to these vehicles.
Art. 35a75 1 Farmers who have acquired plant reproduction material placed on the market by the proprietor of the patent or with his consent may reproduce, on their own farm, the product from this material cultivated on their own farm. 2 Farmers who have acquired animal reproductive material or animals placed on the market by the proprietor of the patent or with his con- sent may reproduce, on their own farm, the animals obtained through reproduction of this material or these animals on their own farm. 3 Farmers are required to obtain the consent of the proprietor of the patent when they wish to give the product of their harvest or the animal or animal reproductive material obtained to third parties for reproduction purposes. 4 Contractual agreements which limit or revoke the farmers’ privilege in the area of food and feed production are null and void.
74 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1997 1997; BBl 1976 II 1).
75 Inserted by Art. 2 No 2 of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 (AS 2008 3897; BB1 2004 4155).
A. Prior user rights; foreign vehicles
Abis. Farmers’ privilege I. Principle
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Art. 35b76
The Federal Council determines the plant species included under the farmers’ privilege; in so doing, it shall in particular take into consid- eration their importance as raw materials for food and feed.
Art. 3677 1 If a patented invention cannot be used without infringing a prior patent, the proprietor of the later patent has the right to a non- exclusive licence to the extent required to use his invention, provided that the invention represents an important technical advance of con- siderable economic significance in relation to the invention that is the subject-matter of the prior patent. 2 A licence to use the invention that is the subject-matter of the prior patent may only be transferred jointly with the later patent. 3 The proprietor of the prior patent may make the grant of a licence conditional on the proprietor of the later patent granting him a licence to use his invention in return.
Art. 36a79 1 When a plant variety right may not be claimed or used without infringing an earlier-granted patent, the plant breeder or the owner of the plant variety has the right to a non-exclusive licence to the extent required to obtain and use his plant variety right, provided that the plant variety represents an important advance of considerable eco- nomic significance in comparison to the patent-protected invention. For varieties for agriculture and food, the criteria under the Seed Ordinance of 7 December 199880 serve as a reference point. 2 The proprietor of the patent may make the grant of a licence condi- tional on the owner of the plant variety granting him a licence to use his plant variety right in return.
Art. 37 1 Three years from the date of the grant of the patent, or at the earliest four years after filing the patent application, any person with a legiti- mate interest may apply to the court for the grant of a non-exclusive
76 Inserted by Art. 2 No 2 of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 (AS 2008 3897; BB1 2004 4155).
77 Amended by No I of the Federal Act of 16 Dec.1994, in force since 1 July 1995 (AS 1995 2606; BBl 1994 IV 950).
78 Amended by Art. 2 No 2 of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 (AS 2008 3897; BB1 2004 4155).
79 Inserted by Art. 2 No 2 of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 (AS 2008 3897; BB1 2004 4155).
80 SR 916.151
II. Scope and compensation
B. Dependent rights I. Dependent inventions78
II. Dependent plant variety rights
C. Exploitation of the invention in Switzerland I. Action for the grant of a licence
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licence to use the invention if the proprietor of the patent has not sufficiently exploited it in Switzerland by the time of the action and cannot justify such a failure. Importing is also considered domestic exploitation.81 2 …82 3 At the request of the plaintiff, the court may grant a licence immedi- ately after the action has been filed without prejudice to the final judgment providing that, in addition to the conditions set out in para- graph 1, the plaintiff provides prima facie evidence that he has an interest in the immediate use of the invention and that he provides adequate security to the defendant; the defendant shall be given the opportunity to be heard beforehand.83
Art. 38 1 If the grant of licences does not suffice to meet the demand of the domestic market, any person with a proven interest may bring an action for the cancellation of the patent after a period of two years from the grant of the first licence under Article 37 paragraph 1. 2 If the legislation of the country of which the proprietor of the patent is a national or in which he is resident allows an action for cancella- tion of the patent for failure to exploit the invention in that country as early as three years after the grant of the patent, such an action shall be allowed instead of the action for the grant of a licence, subject to the conditions specified in Article 37 for the grant of licences.84
Art. 39 The Federal Council may decree Articles 37 and 38 to be inapplicable with regard to nationals of countries granting reciprocity.
Art. 40 1 Where public interest so dictates, the person to whom the proprietor of the patent has, without sufficient reason, refused to grant the licence requested, may apply to the court for the grant of a licence to use the invention. 85
81 Amended by No I of the Federal Act of 16 Dec.1994, in force since 1 July 1995 (AS 1995 2606; BBl 1994 IV 950).
82 Repealed by No I of the Federal Act of 16 Dec. 1994 (AS 1995 2606; BBl 1994 IV 950). 83 Amended by No I of the Federal Act of 16. Dec. 1994, in force since 1. July 1995
(AS 1995 2606; BBl 1994 IV 950). 84 Amended by No I of the Federal Act of 17. Dec. 1976, in force since 1. Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 85 Amended by No I of the Federal Act of 17. Dec. 1976, in force since 1. Jan. 1978
(AS 1977 1997; BBl 1976 II 1).
II. Action for cancellation of the patent
III. Exceptions
D. Licence in the interest of the public
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2 …86
Art. 40a87
For inventions in the field of semi-conductor technology, a non- exclusive licence may only be granted to remedy a practice held to be anti-competitive in court or administrative proceedings.
Art. 40b88
Any person who intends to use a patented biotechnological invention as an instrument or means for research is entitled to a non-exclusive licence.
Art. 40c89
For inventions concerning a diagnostic product or procedure for humans, a non-exclusive licence shall be granted to remedy a practice held to be anti-competitive in court or administrative proceedings.
Art. 40d90 1 Any person may bring an action before the court to be granted a non- exclusive licence for the manufacture of patent-protected pharmaceu- tical products and for their export to a country that has insufficient or no production capacity of its own in the pharmaceutical sector and which requires these products to combat public health problems, in particular those related to HIV/AIDS, tuberculosis, malaria and other epidemics (beneficiary country). 2 Countries that have declared in the World Trade Organization (WTO) that they wholly or partly renounce their claim to a licence in accordance with paragraph 1 are excluded from being beneficiary countries in accordance with the terms of their declaration. All other countries that fulfil the requirements of paragraph 1 may be benefici- ary countries.
86 Repealed by No I of the Federal Act of 16. Dec. 1994 (AS 1995 2606; BBl 1994 IV 950). 87 Inserted by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995
(AS 1995 2606; BB1 1994 IV 950). 88 Inserted by No I of the Federal Act of 16 Dec. 1994 (AS 1995 2606; BBl 1994 IV 950).
Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
89 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
90 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
E. Compulsory licences in the field of semi- conductor technology
F. Research tools
G. Compulsory licences for diagnostic tools
H. Compulsory licences for the export of pharmaceutical products
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3 The licence in accordance with paragraph 1 is limited to the produc- tion of the pharmaceutical product in the quantity that meets the requirements of the beneficiary country; the total quantity must be exported to the beneficiary country. 4 The owner of the licence in accordance with paragraph 1, as well as any manufacturer that produces products under licence, must ensure that they are clearly identified as products that have been produced under a licence in accordance with paragraph 1, and that the products are distinguished by their packaging or by their special colouring or shape from patent-protected products, provided this does not have a significant impact on the price of the products in the beneficiary country. 5 The Federal Council shall regulate the requirements for the grant of licences in accordance with paragraph 1. In particular, it shall stipulate the information or notifications the responsible court must possess in order to be able to decide on the grant of the licence in accordance with paragraph 1, and shall regulate the measures in accordance with paragraph 4.
Art. 40e91 1 The licences provided for in Articles 36–40d are granted only if efforts by the applicant to obtain a contractual licence on appropriate market terms within a reasonable period of time have been unsuccess- ful; in the case of a licence in accordance with Article 40d, a period of 30 working days is regarded as reasonable. Such efforts are not re- quired in situations of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. 2 The scope and term of the licence are limited to the purpose for which it has been granted. 3 The licence may only be transferred with that part of the enterprise which uses the licence. This also applies to sub-licences. 4 The licence is primarily granted for supplying the domestic market. Article 40d remains reserved. 5 The proprietor of the patent has the right to appropriate remunera- tion. In assessing the remuneration, the circumstances of the individ- ual case and the economic value of the licence are taken into account. In the case of a licence under Article 40d, the remuneration is deter- mined by taking into account the economic value of the licence in the importing country, its level of development and the urgency in public health and humanitarian terms. The Federal Council shall specify the method of calculation.
91 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
I. Common provisions for Articles 36–40d
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6 The court shall decide on the grant and revocation of licences, on their scope and duration as well as on the remuneration payable. In particular, it shall revoke an entitled person’s licence on request if the circumstances that led to its being granted no longer apply and it is not expected that they will arise again. Appropriate protection of the legal interests of the entitled person remains reserved. Where a licence is granted under Article 40d, legal remedies have no suspensive effect.
Section 6: Fees92
Art. 4193
The obtainment and maintenance of a patent and the processing of special requests are subject to the payment of the relevant fees pre- scribed in the Ordinance.
Art. 42-4494
Art. 45-4695
Section 7: Further Processing and Re-Establishment of Rights96
Art. 46a97 1 If the patent applicant or the proprietor of the patent fails to observe a time limit prescribed by legislation or a time limit set by the Insti- tute, he may file a request for further processing with the Institute.98 2 He must file the request within two months of receiving notice from the Institute of failure to observe the time limit, and six months at the
92 Amended by No I of the Federal Act of 17 Dec.1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
93 Amended by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property, in force since 1 Jan. 1996 (AS 1995 5050; BBl 1993 III 964).
94 Repealed by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1993 III 964).
95 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 96 Originally before Art. 47. Amended by No I of the Federal Act of 3 Feb. 1995, in force
since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706). 97 Inserted by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995
(AS 1995 2879; BBl 1993 III 706). 98 Amended by Annex No 23 of the Federal Administrative Court Act of 17 June 2005, in
force since 1 Jan. 2007 (AS 2006 2197; BBl. 2001 4202).
A. Further processing
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latest from the expiry of the said time limit.99 He must also carry out in full, within these time limits, the omitted act, supplement where necessary the patent application and pay the fee for further processing. 3 Acceptance of the request for further processing has the effect of restoring the situation that would have resulted from carrying out the act in good time. Article 48 remains reserved. 4 Further processing is ruled out in the case of failure to observe:
a. time limits that do not have to be observed vis-à-vis the Insti- tute;
b. time limits for filing a request for further processing (para. 2); c. time limits for filing a request for re-establishment of rights
(Art. 47 para. 2); d. time limits for filing a patent application accompanied by a
claim for the right of priority and for the declaration of priority (Art. 17 and 19);
e. …100
f. the time limit for the modification of technical documents (Art. 58 para. 1);
g. …101
h. time limits for applying for the grant of a supplementary pro- tection certificate (Art. 140f para. 1, Art. 146 para. 2, and Art. 147 para. 3);
i. any other time limit laid down by ordinance where failure to comply with that time limit excludes further processing.
Art. 47 1 Where the patent applicant or proprietor of the patent provides prima facie evidence of having been prevented, through no fault on his part, from observing a time limit prescribed by this Act or the Implement- ing Ordinance or one set by the Institute, he shall be granted, on request, the re-establishment of his rights. 2 The request shall be filed with the authority for which the act should have been carried out within two months of the removal of the cause
99 Amended by Art. 2 of the Federal Decree of 22 June 2007, in force since 1 July 2008 (AS 2008 2677; BBl 2006 1).
100 Repealed by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, with effect from 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
101 Repealed by Art. 2 of the Federal Decree of 22 June 2007, with effect from 1 July 2008 (AS 2008 2677; BBl 2006 1).
102 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
B. Re- establishment of rights102
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of non-compliance with the time limit, and at the latest within one year of expiry of the unobserved time limit; at the same time, the omitted act must be carried out. 3 Re-establishment of rights shall be ruled out in respect of paragraph 2 above (time limit for the request for re-establishment of rights). 4 Acceptance of the request shall have the effect of restoring the situation that would have resulted from carrying out the act in good time; Article 48 shall remain reserved.
Art. 48 1 The patent may not be invoked against any person who, during the following periods, has commercially used an invention in good faith in Switzerland or who has made special preparations for that purpose:
a. between the last day of the time limit stipulated for payment of a patent renewal fee (…104) and the day on which a request for further processing (Art. 46a) or a request for re-establishment of rights (Art. 47) was filed;
b. between the last day of the priority period (Art. 17 para. 1) and the day on which the patent application was filed.105
2 This prior user right is governed by Article 35 paragraph 2. 3 Any person claiming a prior user right based on paragraph 1 letter a must pay the proprietor of the patent appropriate compensation from the date on which the patent is revived. 4 In the event of dispute, the court shall decide on the existence and on the extent of the rights claimed by prior use and on the amount of compensation to be paid in accordance with paragraph 3.
Section 8106 Representation and Supervision
Art. 48a 1 There is no obligation to be represented before the administrative authorities in proceedings under this Act.
103 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
104 Reference deleted by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1994 III 964).
105 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
106 Inserted by Annex No 3 of the Patent Attorney Act of 20 March 2009, in force since 1 July 2011 (AS 2011 2259; BBl 2008 407).
C. Reservation for third parties103
A. Representa- tion
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2 Any party who does not want to represent himself in proceedings under this Act before the administrative authorities must be repre- sented by a representative with an address for service in Switzerland.
Art. 48b Article 13 of the Patent Attorney Act of 20 March 2009107 applies by analogy to representatives who are not registered in the Patent Attor- ney Register.
Second Title: Grant of the Patent Section 1: The Patent Application
Art. 49 1 Any person who wishes to obtain a patent for an invention must file a patent application with the Institute. 2 The patent application must contain:
a. a request for the grant of a patent; b. 109a description of the invention and, where a claim is made for a
sequence derived from a sequence or partial sequence of a gene, a specific description of the function it performs;
c. one or more patent claims; d. the drawings to which the description or claims of the patent
refer; e. an abstract.110
3 …111
107 SR 935.62 108 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 109 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 110 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 111 Repealed by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of
the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1994 III 964).
B. Supervision
A. Form of the application I. In general108
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Art. 49a112 1 The patent application must contain information on the source:
a. of the genetic resource to which the inventor or the patent ap- plicant had access, provided the invention is directly based on this resource;
b. of traditional knowledge of indigenous or local communities of genetic resources to which the inventor or the patent appli- cant had access, provided the invention is directly based on this knowledge.
2 If the source is unknown to the inventor or the patent applicant, the patent applicant must confirm this in writing.
Art. 50 1 The invention must be described in the patent application in such a manner that it can be carried out by a person skilled in the art.114 2 …115
Art. 50a116 1 If an invention that relates to the manufacture or use of biological material cannot be sufficiently described, then the description must be completed by depositing a sample of the biological material and, in the description, by providing details of the essential characteristics of the biological material as well as a reference to the deposit. 2 If, in the case of an invention that relates to biological material as a product, the production process cannot be sufficiently described, then the description must be completed or replaced by depositing a sample of the biological material and, in the description, by a reference to the deposit. 3 The invention is deemed to be disclosed in accordance with Arti- cle 50 only if the sample of the biological material has been deposited at the latest on the filing date with a recognised depositary institution and the patent application as originally filed contains details of the biological material and reference to its deposit.
112 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
113 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
114 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
115 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 116 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
II. Information on the source of genetic resources and traditional knowledge
B. Disclosure of the invention I. In general113
II. Biological material
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4 The Federal Council shall regulate in detail the requirements for depositing samples, for the details of biological material and for the reference to the deposit, together with access to the samples deposited.
Art. 51117 1 The invention must be defined in one or more patent claims. 2 The claims of the patent shall determine the scope of protection conferred by the patent. 3 The description and drawings must be used to interpret the patent claims.
Art. 52118 1 Each independent claim may define one invention only, namely:
a. a process, or b. a product, a means for performing a process or an apparatus,
or c. an application of a process, or d. a use for a product.
2 A patent may contain several independent claims when they define a set of inventions that are linked to each other in such a way that they constitute a single overall inventive concept.
Art. 53-54119
Art. 55120
Special embodiments defined by an independent claim may be the subject of dependent claims.
Art. 55a121
117 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
118 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
119 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 120 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 121 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).
Repealed by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property, with effect from 1 Jan. 1996 (AS 1995 5050; BBl 1994 III 964).
C. Patent claims I. Scope
II. Independent claims
III. Dependent claims
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Article 55b122
The abstract serves the sole purpose of providing technical informa- tion.
Art. 56 1 The date of filing is the day on which the last of the following items are filed:
a. an express or implied application for the grant of a patent; b. information allowing the identity of the patent applicant to be
established; c. an item which appears to be a description.124
2 For posted applications, the date of filing is the day on which it was given to the Swiss postal service for delivery to the Institute.125 3 The Federal Council shall regulate the particulars, in particular the language in which the items under paragraph 1 must be filed, the date of filing and publication, whether a missing part of the description or the drawing may be filed afterwards, as well as the replacement of the description or the drawings with a reference to a patent application filed earlier126.
Art. 57127 1 A patent application resulting from the division of an earlier applica- tion shall be given the same filing date as the earlier application:
a. if, at the time of its filing, it is expressly designated as being a divisional application;
b. if, at the time of filing of the divisional application, the earlier application was still pending; and
c. insofar as its subject-matter does not extend beyond the con- tent of the earlier application as originally filed.
2 …128
122 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
123 Amended by Art. 2 of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2677; BBl 2006 1).
124 Amended by Art. 2 of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2677 2679; BBl 2006 1).
125 Amended by Annex No 6 of the Postal Services Organisation Act of 30 April 1997, in force since 1 Jan. 1998 (AS 1997 2465; BBl 1996 III 1306).
126 Inserted by Art. 2 of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2677; BBl 2006 1).
127 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
128 Repealed by Art. 2 of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2677; BBl 2006 1).
D. Abstract
E. Filing date I. In general123
II. Division of the patent application
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Art. 58129 1 Until the examination procedure has been completed, the patent applicant must be given the opportunity to modify the technical documents on at least one occasion. 2 The technical documents may not be modified such that the subject- matter of the modified patent application extends beyond the content of the technical documents originally filed.
Art. 58a130 1 The Institute shall publish patent applications:
a. immediately after the expiry of a period of 18 months from the filing date or, if priority has been claimed, from the priority date;
b. at the request of the applicant, before the expiry of the period specified in letter a.
2 The publication shall contain the description, the patent claims and, if applicable, the drawings, as well as the abstract, provided it is available for publication prior to completion of the technical prepara- tions for publication, and if applicable, the report on the state of the art or the international-type search as specified in Article 59 paragraph 5. If the report on the state of the art or the international-type search as specified in Article 59 paragraph 5 is not published with the patent application, they shall be published separately.
Section 2: The Examination Procedure
Art. 59 1 If the subject-matter of the patent application does not fall within Articles 1, 1a, 1b and 2 or does so only in part, the Institute shall inform the patent applicant accordingly, stating the reasons, and shall set him a time limit within which to respond.132 2 If the patent application does not meet the other requirements of this Act or the Ordinance, the Institute shall set a time limit for the patent
129 Amended by Art. 2 of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2677 2679; BBl 2006 1).
130 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
131 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
132 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
F. Modification of the technical documents
G. Publication of patent applica- tions
A. Subject- matter of the examination131
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applicant by which the deficiencies must be remedied. 133 3 …134 4 The Institute shall not examine whether the invention is new or whether it is obvious having regard to the state of the art.135 5 In return for the payment of a fee, the applicant may:
a. instruct the Institute to provide a report on the state of the art within 14 months of the filing date, or, if priority has been claimed, of the priority date; or
b. request the Institute to arrange an international-type search within 6 months of the filing date of a first filing.136
6 If no clarification has been carried out in accordance with para- graph 5, any person entitled to inspect the dossier in accordance with Article 65 may, in return for the payment of a fee, instruct the Institute to provide a report on the state of the art.137
Art. 59a138 1 If the requirements for the grant of a patent are fulfilled, the Institute shall inform the patent applicant that the examination procedure has been completed. 2 …139 3 The Institute shall reject the patent application if:
a. the application has not been withdrawn even though a patent may not be granted for the reasons stated in Article 59 para- graph 1; or
b. the deficiencies mentioned in Article 59 paragraph 2 have not been remedied.
Art. 59b140
133 Amended by No I of the Federal Act of 17. Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
134 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BB1 1976 II 1). 135 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 136 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 137 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 138 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978
(AS 1977 1997; BBl 1976 II 1). 139 Repealed by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of
the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1994 III 964). 140 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).
Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
B. Completion of the examination
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Art. 59c141 1 Within nine months of the publication of the entry in the Patent Register, any person may give notice of opposition to the Institute to a patent which has been granted by the latter. The notice of opposition must be filed in a written reasoned statement. 2 Opposition may only be filed on the grounds that the subject-matter of the patent is not patentable under Articles 1a, 1b and 2. 3 If the Institute finds in favour of the opposition in its entirety or in part, it may revoke the patent or maintain it as amended. The decision regarding an opposition is subject to appeal to the Federal Administra- tive Court. 4 The Federal Council shall regulate the particulars, in particular the procedure.
Art. 59d142
Section 3: Patent Register; Publications by the Institute; Electronic Administrative Communication143
Art. 60 1 The Institute shall grant the patent by registering it in the Patent Register.144 1bis The Patent Register shall, in particular, contain the following particulars: number of the patent, classification symbol, title of the invention, date of filing, name and domicile of the proprietor of the patent and, where applicable, priority data, name and business address of the representative and name of the inventor.145 2 Any modifications concerning the validity of the patent or the right to the patent must be entered in the Patent Register.
141 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
142 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
143 Amended by Annex No 6 of the Federal Act of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
144 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
145 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
C. Opposition
A. Patent Register
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3 …146
Art. 61 1 The Institute shall publish:
a. the patent application with the particulars listed in Article 58a paragraph 2;
b. the registration of the patent in the Patent Register, with the particulars listed in Article 60 paragraph 1bis;
c. the cancellation of the patent in the Patent Register; d. any modifications registered in the Register concerning the
validity of the patent and the right to the patent.147 2 …148 3 The Institute shall determine the organ of publication.149
Art. 62150
Art. 63151 1 The Institute shall publish a patent specification for each patent granted.153 2 This shall contain the description, the patent claims, the abstract, the drawings if any, and the particulars recorded in the Register (Art. 60 para. 1bis).
146 Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
147 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
148 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
149 Inserted by No I of the Federal Act of 9 Oct. 1998 (AS 1999 1363; BBl 1998 1633). Amended by Annex No II 4 of the Designs Act of 5 Oct. 2001, in force since 1 July 2002 (AS 2002 1456; BBl 2000 2729).
150 Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
151 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
152 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
153 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
B. Publications I. Concerning patent applica- tions and registered patents
II. Patent specification152
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Art. 63a154
Art. 64 1 As soon as the patent specification is ready for publication, the Institute shall issue a patent certificate. 2 This consists of an attestation confirming the legal conditions for obtaining a patent have been met and a copy of the patent specifica- tion.
Art. 65155 1 Following publication of the patent application, any person may inspect the dossier. The Federal Council may restrict the right of inspection only if manufacturing or trade secrets or other overriding interests so require. 2 The Federal Council shall regulate the cases in which inspection of the dossier is permitted prior to the publication of the patent applica- tion. It shall also regulate, in particular, the inspection of patent appli- cations that were rejected or withdrawn before publication.
Art. 65a156 1 The Federal Council may authorise the Institute to regulate elec- tronic communication in accordance with the general provisions on the administration of federal justice. 2 The dossier and the files may be maintained and stored in electronic form. 3 The Patent Register may be maintained in electronic form. 4 The Institute may make its data accessible, particularly online, to third parties; it may demand remuneration for this service. 5 The Institute's publications may be produced in electronic form; the electronic version, however, shall only be authoritative if the data is published exclusively in electronic form.
154 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
155 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
156 Inserted by Annex No 6 of the Federal Act of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
C. Patent certificate
D. Inspection of the dossier
E. Electronic administrative communication
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Third Title: Legal Protection Section 1: Common Provisions for Protection under Civil and Criminal Law
Art. 66 In accordance with the following provisions, the following persons may be held liable under civil and criminal law:
a. any person who uses a patented invention unlawfully; imita- tion is also deemed to constitute use;
b.157 any person who refuses to notify the authority concerned of the origin and quantity of products in his possession which are unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial customers;
c. any person who removes the patent mark from products or their packaging without authorisation from the proprietor of the patent or the licensee;
d. any person who abets any of the said offences, participates in them, or aids or facilitates the performance of any of these acts.
Art. 67 1 If the invention concerns a process for the manufacture of a new product, every product of the same composition shall be presumed to have been made by the patented process until proof to the contrary has been provided. 2 Paragraph 1 applies by analogy to a process for the manufacture of a known product if the proprietor of the patent provides prima facie evidence of an infringement of the patent.
Art. 68 1 The parties' manufacturing or trade secrets must be safeguarded. 2 Evidence which would disclose such secrets may be made available to the other party only to such an extent as is compatible with the safeguarding of the secrets.
157 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
A. Circum- stances giving rise to liability
B. Reversal of the burden of proof
C. Safeguarding manufacturing or trade secrets
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Art. 69 1 In the event of a conviction, the court may order the forfeiture and sale or destruction of the unlawfully manufactured products or equip- ment, devices and other means that primarily serve their manufac- ture.158 2 The net proceeds from the sale shall firstly be used for the payment of the fine, then the payment of the investigation and court costs, and finally for the payment of a final unappealable award of damages to the injured party and to cover their litigation costs; any surplus shall go to the former owner of the goods sold. 3 Even in the event of the dismissal of the action or an acquittal, the court may order the destruction of the equipment, devices and other means intended primarily for the infringement of the patent.159
Art. 70 1 The court may authorise the successful party to publish the judgment at the expense of the opposing party; the court shall determine the form, extent and timing of the publication. 2 In criminal cases (Art. 81–82), publication of the judgment is gov- erned by Article 68 of the Swiss Criminal Code160.161
Art. 70a162
The courts shall provide the Institute with full official copies of the final judgments free of charge.
Art. 71 Any person who brings an action under Articles 72, 73, 74 or 81 and subsequently brings a further action against the same party for the same or a similar act on the basis of another patent must bear the court costs and the other party's costs for the new procedure if he does not provide prima facie evidence that in the prior action he was, through no fault on his part, unable to invoke the other patent.
158 Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995 (AS 1995 2606; BBl 1994 IV 950).
159 Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995 (AS 1995 2606; BBl 1994 IV 950).
160 SR 311.0 161 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 162 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 163 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
D. Sale or destruction of products or equipment
E. Publication of the judgment
F. Notification of judgments
G. Prohibition of multi-stage actions163
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Section 2: Special Provisions for Protection under Civil Law
Art. 72 1 Any person who is threatened with or has his rights infringed by an act referred to in Article 66 may demand an injunction or that the unlawful situation be remedied. 2 …164
Art. 73 1 Any person who performs an act referred to in Article 66 either wilfully or through negligence shall be required to pay damages to the injured party according to the provisions of the Code of Obliga- tions165. 2 …166 3 An action for damages may only be brought after the patent has been granted; the defendant may, however, be held liable for loss or dam- age caused from the time when he first obtained knowledge of the content of the patent application, but at the latest from the publication of the application.167 4 …168
Art. 74 Any person demonstrating an interest may bring an action to obtain a declaratory judgment on the existence or non-existence of a circum- stance or legal relationship governed by this Act, in particular:
1. that a particular patent is valid; 2. that the defendant has performed an act referred to in Article
66; 3. that the plaintiff has not performed any act referred to in Arti-
cle 66;
164 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
165 SR 220 166 Repealed by Annex 1 No II 12 of the Civil Procedure Code of 19 Dec. 2008, in force
since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221). 167 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1). 168 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).
Repealed by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
A. Action for injunction or remedy
B. Action for damages
C. Action for declaratory judgment
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4.169 that a particular patent is not enforceable against the plaintiff by virtue of a legal provision;
5. that with regard to two particular patents, the requirements of Article 36 for the grant of a licence are or are not fulfilled;
6. that the plaintiff has made the invention, which is the subject- matter of a particular patent application or patent;
7.170 that a particular patent, which violates the double patenting prohibition, has become invalid.
Art. 75171 1 Any person who holds an exclusive licence, irrespective of the registration of the licence in the Register, is entitled to bring an action as specified in Articles 72 or 73 independently, provided this is not expressly excluded by the licence agreement. 2 Any licensee may join an action under Article 73 in order to claim their own loss or damages.
Art. 76172
Art. 77173 1Any person requesting preliminary measures may, in particular, request that the court orders:
a. measures to secure evidence, to preserve the existing state of affairs or to provisionally enforce claims for injunctive relief and remedy;
b. a precise description to be made: 1. of the allegedly unlawful processes used, 2. of the allegedly unlawful products manufactured as well
as the means used to manufacture them; or c. the seizure of these objects.
2 If a party requests a description to be made, it must provide prima facie evidence that an existing claim has been infringed or an in- fringement is suspected.
169 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
170 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
171 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
172 Repealed by Annex 1 No II 12 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
173 Amended by Annex No 4 of the Federal Patent Court Act of 20 March 2009, in force since 1 Jan. 2012 (AS 2010 513, 2011 2241; BBl 2008 455).
D. Licensees’ right of action
F. Preliminary measures
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3 If the opposing party claims that a manufacturing or trade secret is involved, the court shall take the necessary measures to safeguard it. It may exclude the applicant party from participating in the procedure for making the description. 4 The procedure for making the description, with or without seizure, shall be carried out by a member of the Federal Patent Court, who may call on the assistance of an expert if necessary. It shall be carried out, where necessary, in collaboration with the competent cantonal instances. 5 Before the applicant party is notified of the description, the opposing party shall be given the opportunity to comment.
Art. 78174
Art. 79 and 80175
Section 3: Special Provisions for Protection under Criminal Law
Art. 81 1 Any person who wilfully commits an act specified in Article 66 is, on complaint by the injured party, liable to a custodial sentence not exceeding one year or to a monetary penalty.176 2 The right to file a complaint shall lapse after six months from the day on which the injured party became aware of the identity of the of- fender. 3 If the offender acts for commercial gain, he shall be prosecuted ex officio. The penalty is a custodial sentence not exceeding five years or a monetary penalty. The custodial sentence shall be combined with a monetary penalty.177
174 Repealed by Annex No 11 of the Civil Jurisdiction Act of 24 March 2000 (AS 2000 2355; BBl 1999 2829).
175 Repealed by Annex 1 No II 12 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 January 2011 (AS 2010 1739; BBl 2006 7221).
176 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
177 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
A. Criminal provisions I. Patent infringement
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Art. 81a178 1 Any person who wilfully provides false information under Arti- cle 49a is liable to a fine of up to 100,000 francs. 2 The court may order the publication of the judgment.
Art. 82 1 Any person who wilfully offers for sale or distributes his business documents, notices or advertisements of any nature, products or goods bearing a designation that creates the erroneous belief that the prod- ucts or goods have patent protection is liable to a fine. 180 2 The court may order the publication of the judgment.
Art. 83 The general provisions of the Swiss Criminal Code181 apply unless this Act provides otherwise.
Art. 84 1 The competent authorities for the prosecution and judgment of an offence are those of the place where the act was committed or of the place where the act occurred; where more than one place comes into consideration, or where several joint offenders are concerned, the competent authorities are those of the place where the investigation was first commenced. 2 The competent authorities for the prosecution and judgment of instigators and accomplices are those which are competent for the prosecution and judgment of the main offender.
Art. 85 1 The prosecution and judgment of an offence is a matter for the cantonal authorities. 2 Judgments, penalty orders issued by administrative authorities and decisions to dismiss proceedings must be communicated without delay, free of charge and with full copies of documents to the Office of the Attorney General of Switzerland.
178 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
179 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
180 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
181 SR 311.0
II. False information concerning the source
III. False patent marking 179
B. Applicability of the general provisions of the Swiss Criminal Code
C. Place of jurisdiction
D. Competence of the cantonal authorities I. In general
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Art. 86 1 If the person under investigation pleads the nullity of the patent as a defence, the court may allow him an appropriate time limit within which to file a nullity action, giving appropriate notice of the penalty for failure to do so; if the patent has not been examined with regard to novelty and inventive step and if the court has any doubt as to the validity of the patent, or if the person under investigation has provided prima facie evidence that the defence of nullity of the patent appears justified, the court may allow the injured party an appropriate period within which to file an action for declaration of the validity of the patent, likewise giving appropriate notice of the penalty for failure to do so.182 2 Where the action is raised within the stated period, the criminal proceedings shall be suspended until a final decision on the action has been issued; the limitation period for prosecution is suspended during this time. 3 …183
Section 4:184 Assistance Provided by the Customs Administration
Art. 86a 1 The Customs Administration is authorised to notify the proprietor of a patent that is valid in Switzerland if there is any suspicion of the imminent import, export or transit of goods that infringe that patent. 2 In such cases, the Customs Administration is authorised to withhold the goods for three working days in order that the person entitled may file an application in accordance with Article 86b paragraph 1.
Art. 86b 1 If the proprietor or a licensee of a patent that is valid in Switzerland entitled to institute proceedings has clear indications of the imminent import, export, or transit of goods which infringe that patent, he may request the Customs Administration in writing to refuse the release of the goods.
182 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
183 Repealed by Annex No 11 of the Civil Jurisdiction Act of 24 March 2000 (AS 2000 2355; BBl 1999 2829).
184 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
II. Plea of nullity of the patent
A. Notification of suspicious goods
B. Application for assistance
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2 The applicant must provide all the information available to him that is necessary for the Customs Administration’s decision; this includes a precise description of the goods. 3 The Customs Administration shall make the final decision on the application. It may charge a fee to cover the administrative costs.
Art. 86c 1 If the Customs Administration, as a result of an application under Article 86b paragraph 1, has grounds to suspect that certain goods intended for import, export or transit infringe a patent valid in Swit- zerland, then it shall notify the applicant and the declarant, holder or owner of the goods accordingly. 2 It shall withhold the goods for a maximum of ten working days from the time of notification pursuant to paragraph 1, so that the applicant may obtain preliminary measures. 3 Where justified by circumstances, it may withhold the goods for a maximum of ten additional working days.
Art. 86d 1 While the goods are being withheld, the Customs Administration is authorised to hand over or deliver to the applicant, on request, samples for examination or to permit the applicant to inspect the goods being withheld. 2 The samples are collected and delivered at the expense of the appli- cant. 3 They must be returned after the examination has been carried out, if this is reasonable. If samples are retained by the applicant, they are subject to the provisions of customs legislation.
Art. 86e 1 At the same time as notification is made in accordance with Arti- cle 86c paragraph 1, the Customs Administration shall inform the declarant, holder or owner of the goods of the possible handover of samples or the opportunity to inspect them in accordance with Arti- cle 86d paragraph 1. 2 The declarant, holder or owner may request to be present at the inspection in order to safeguard his manufacturing or trade secrets. 3 The Customs Administration may refuse to hand over samples on a reasoned request from the declarant, holder or owner.
C. Withholding of goods
D. Samples
E. Safeguarding of manufacturing and trade secrets
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Art. 86f 1 When making an application under Article 86b paragraph 1, the applicant may submit a written request to the Customs Administration to destroy the goods. 2 If an application for destruction is made, the Customs Administra- tion shall notify the declarant, holder or owner of the goods accord- ingly as part of the notification made under Article 86c paragraph 1. 3 The application for destruction does not result in the time limits for obtaining preliminary measures under Article 86c paragraphs 2 and 3 being extended.
Art. 86g 1 The destruction of the goods requires the consent of the declarant, holder or owner. 2 Consent is deemed to be given if the declarant, holder or owner does not expressly object to the destruction within the time limits given under Article 86c paragraphs 2 and 3.
Art. 86h Before the destruction of the goods, the Customs Administration shall remove samples and hold them in safekeeping as evidence in any actions for damages.
Art. 86i 1 If the destruction of the goods proves to be unjustified, the applicant is exclusively liable for the resultant loss. 2 If the declarant, holder or owner has given express written consent for the destruction, no claims for damages may be made against the applicant if the destruction later proves to be unjustified.
Art. 86j 1 The destruction of the goods is carried out at the expense of the applicant. 2 The costs for collecting and safekeeping samples under Article 86h are decided by the court in connection with the assessment of claims for damages in accordance with Article 86i paragraph 1.
Art. 86k 1 If it is anticipated that withholding the goods may lead to a loss being incurred, the Customs Administration may make the withhold- ing of the goods dependent on the applicant providing them with an
F. Application for destruction of the goods I. Procedure
II. Consent
III. Evidence
IV. Damages
V. Costs
G. Accountabil- ity statement and damages
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accountability statement. As an alternative to this statement and where justified by the circumstances, the Customs Administration may request the applicant to provide appropriate security. 2 The applicant shall be liable for any losses incurred from withhold- ing the goods and from collecting the samples if preliminary measures are not ordered or prove to be unjustified.
Fourth Title: …
Art. 8790185
Art. 91-94186
Art. 95187
Art. 96101188
Art. 102-103189
Art. 104106190
Art. 106a191
Art. 107-108192
185 Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
186 Repealed by Annex No 10 of the Federal Act of 4 Oct. 1991 (AS 1992 288; BBl 1991 II 465).
187 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 188 Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008
(AS 2008 2551; BBl 2006 1). 189 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 190 Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008
(AS 2008 2551; BBl 2006 1). 191 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).
Repealed by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
192 Repealed by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).
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Fifth Title: European Patent Applications and European Patents193 Section 1: Applicable Law194
Art. 109195 1 This Title applies to European patent applications and European patents with effect in Switzerland. 2 The other provisions of this Act apply except where the Convention of 5 October 1973196 on the Grant of European Patents (European Patent Convention) or this Title provides otherwise. 3 The text of the European Patent Convention that binds Switzerland takes precedence over this Act.
Section 2: Effects of the European Patent Application and the European Patent and Modifications concerning the Validity of the European Patent197
Art. 110198
European patent applications for which a filing date has been assigned and European patents have the same effect in Switzerland as patent applications filed in due form with the Institute and patents granted by this Institute.
193 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
194 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
195 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
196 [AS 1977 1711, 1979 621 Art. 1, 1995 4187, 1996 793, 1997 1647 Art. 1, 2007 3673 Art. 1 3674 Art. 1]. Today see: The European Patent Convention, revised in Munich on 29 November 2000 (SR 0.232.142.2).
197 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
198 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
199 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
Scope of the Act; Relation to the European Patent Convention
A. Principle Effects199
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Art. 110a200
A modification concerning the validity of a European patent due to a final decision resulting from a procedure before the European Patent Office has the same effect as a final judgment in a procedure in Swit- zerland.
Art. 111201 1 Published European patent applications do not confer on the appli- cant the protection conferred by Article 64 of the European Patent Convention. 2 However, the injured party may, in an action for damages, claim the loss or damage caused by the defendant from the moment at which the latter became aware of the content of the European patent application, but at the latest from the date of publication of the application by the European Patent Office.
Art. 112-116202
Section 3: Administration of the European Patent203
Art. 117204
As soon as the mention of the grant of the European patent has been published in the European Patent Bulletin, the Institute shall record it in the Swiss Register of European Patents along with the particulars noted in the European Patent Register.
Art. 118205
The Institute shall publish registrations made in the Swiss Register of European Patents.
200 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479, BBl 2005 3773).
201 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
202 Repealed by Art. 2 of the Federal Decree of 16 Dec. 2005 on the Approval of the Agreement on the Application of Article 65 of the European Patent Convention and on the Amendment of the Patents Act, with effect from 1 May 2008 (AS 2008 1739; BBl 2005 3773).
203 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
204 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
205 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
II. Modifications concerning the validity of the patent
B. Provisional protection conferred by a European patent application
A. Register for European patents
B. Publications
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Art. 119206
Art. 120207
Section 4: Conversion of the European Patent Application208
Art. 121209 1 The European patent application may be converted into a Swiss patent application:
a.210 in the case provided for in Article 135 paragraph 1 letter a of the European Patent Convention;
b. in the case of failure to observe the time limit in accordance with Article 14 paragraph 2 of the European Patent Conven- tion, where the original application was filed in Italian;
c. …211. 2 …212
Art. 122213 1 Where the request for conversion is filed in due form and sent in good time to the Institute, the patent application is deemed to have been filed on the date of filing of the European patent application. 2 The documents accompanying the European patent application or European patent that were filed with the European Patent Office are deemed to have been filed at the same time with the Institute. 3 The rights attached to the European patent application remain valid.
206 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by Annex No 4 of the Federal Act of 24 March 1995 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1994 III 964).
207 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by Annex No 3 of the Patent Attorney Act of 20 March 2009, with effect since 1 July 2011 (AS 2011 2259; BBl 2008 407).
208 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
209 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
210 Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479; BBl 2005 3773).
211 Repealed by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
212 Repealed by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
213 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
A. Grounds for conversion
B. Legal effects
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Art. 123214
Where the language in which the original text of the European patent application is written is not an official Swiss language, the Institute shall allow the patent applicant a time limit within which to file a translation in an official Swiss language.
Art. 124215 1 The provisions in force for Swiss patent applications apply to the patent application arising from the conversion, subject to Article 137 paragraph 1 of the European Patent Convention. 2 The claims of a patent application resulting from the conversion of a European patent may not be drafted in such a way that the extent of protection conferred by the patent is extended.
Section 5: Provisions for Protection under Civil and Criminal Law216
Art. 125217 1 Where, for one and the same invention, a Swiss patent and a Euro- pean patent with effect in Switzerland have been granted to the same inventor or to his successor in title with the same filing or priority date, the Swiss patent has no further effect as from the date on which:
a. the opposition period against the European patent has expired without an opposition being filed; or
b. the European patent has been maintained in opposition pro- ceedings by final decision.
2 Article 27 applies by analogy.
Art. 126218 1 Where, for one and the same invention, a patent resulting from a Swiss or international patent application (Art. 131 et seq.) and a patent resulting from a converted European patent application have been granted to the same inventor or to his successor in title with the same
214 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
215 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
216 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
217 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
218 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
C. Translation
D. Reservation of the European Patent Conven- tion
A. Prohibition of double patenting I. Precedence of the European patent
II. Precedence of the patent arising from the conversion
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filing or priority date, the first patent has no further effect from the date on which the patent resulting from the converted European patent application was granted. 2 Article 27 applies by analogy.
Art. 127219
A partial surrender of the European patent may not be requested so long as opposition to this patent may be filed with the European Patent Office or a final decision has not yet been taken with regard to an opposition, a limitation or a revocation.
Art. 128220
The court may suspend proceedings, and in particular defer judgment where:
a. the European Patent Office has not yet taken a final decision on a limitation or revocation of the European patent
b. the validity of the European patent is disputed and one party provides evidence that opposition may still be filed with the European Patent Office or that a final decision has not yet been taken with regard to an opposition;
c. the European Patent Office has not yet taken a final decision regarding a petition for review of the decision under Article 112a of the European Patent Convention.
Art. 129221 1 If, in the case under Article 86, the person under investigation pleads the nullity of the European patent as a defence, the court may allow him, insofar as opposition to the patent may still be filed with the European Patent Office or intervention in opposition proceedings is still permit- ted, an appropriate time limit for the filing of opposition or for inter- vention in opposition proceedings. 2 Article 86 paragraph 2 applies by analogy.
219 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479; BBl 2005 3773).
220 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to Revise the European Patent Convention and on the Amendment of the Patents Act, in force since 13 Dec. 2007 (AS 2007 6479; BBl 2005 3773).
221 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
B. Rules of procedure I. Limitation of partial surrender
II. Suspension of proceedings a. Civil litigation
b. Criminal procedure
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Section 6: Requests for Legal Cooperation by the European Patent Office222
Art. 130223
The Swiss Federal Institute of Intellectual Property shall receive requests for legal cooperation by the European Patent Office and transmit them to the competent authority.
Sixth Title: International Patent Applications224 Section 1: Applicable Law225
Art. 131226 1 This Title applies to international applications under the Patent Cooperation Treaty of 19 June 1970227, for which the Institute acts as Receiving Office, Designated Office or Elected Office228. 2 The other provisions of this Act apply except where the Patent Cooperation Treaty or this Title provide otherwise. 3 The text of the European Patent Convention that binds Switzerland takes precedence over this Act.
Section 2: Applications filed in Switzerland229
Art. 132230
The Institute acts as Receiving Office under Article 2 of the Patent Cooperation Treaty in respect of international applications filed by
222 Inserted by No 1 of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
223 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997; BBl 1976 II 1).
224 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
225 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
226 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
227 SR 0.232.141.1 228 Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995
(AS 1995 2879; BBl 1993 III 706). 229 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978
(AS 1977 1997 1978 550; BBl 1976 II 1). 230 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978
(AS 1977 1997, 1978 550; BBl 1976 II 1).
Transmitting authority
Scope of the Act; Relation to the Patent Coopera- tion Treaty
A. Receiving Office
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Swiss nationals or persons having their principle place of business or domicile in Switzerland.
Art. 133231 1 The Patent Cooperation Treaty, supplemented by this Act, applies to the procedure before the Institute acting as Receiving Office. 2 In addition to the fees prescribed by the Patent Cooperation Treaty, the international application shall give rise to the payment of a trans- mittal fee collected by the Institute. 3 Article 13 does not apply.
Section 3: Applications designating Switzerland; Elected Office232
Art. 134233
The Institute acts as Designated Office and Elected Office under Article 2 of the Patent Cooperation Treaty in respect of international applications which seek protection for an invention in Switzerland, where such applications do not have the effect of a European patent application.
Art. 135234
An international application for which the Institute acts as Designated Office has the same effect in Switzerland as a Swiss patent applica- tion filed in due form with the Institute if a filing date has been as- signed to it.
Art. 136235
The right of priority under Article 17 may also be claimed for an international application if the first application has been filed in Swit- zerland or only in respect of Switzerland.
231 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
232 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706). .
233 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 (AS 1995 2879; BBl 1993 III 706).
234 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
235 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
B. Procedure
A. Designated Office and Elected Office
B. Effects of the international application I. Principle
II. Right of Priority
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Art. 137236
Articles 111 and 112 of this Act apply by analogy to international applications published under Article 21 of the Patent Cooperation Treaty for which the Institute is the Designated Office.
Art. 138237
Within 30 months of the filing or priority date, the applicant must: a. provide written confirmation of the name of the inventor; b. provide information on the source (Art. 49a); c. pay the filing fee; d. file a translation in an official Swiss language, provided the
international application is not made in such a language.
Art. 139238
Art. 140239 1 Where, in respect of one and the same invention, two patents having the same priority date have been granted to the same inven- tor or to his successor in title, the patent resulting from the national application ceases to have effect as of the date of the grant of the patent resulting from the international application, irrespective of whether the priority of the national application is claimed for the patent resulting from the international application or whether the priority of the interna- tional application is claimed for the patent resulting from the national application. 2 Article 27 applies accordingly.
236 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
237 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
238 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Repealed by No I of the Federal Act of 22 June 2007, with effect since 1 July 2008 (AS 2008 2551; BBl 2006 1).
239 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 (AS 1977 1997, 1978 550; BBl 1976 II 1).
III. Provisional protection
C. Formal requirements
D. …
E. Prohibition of double patenting
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Seventh Title:240 Supplementary Protection Certificates241 Section 1: Supplementary Protection Certificates for Medicinal Products242
Art. 140a243 1 The Institute shall on application grant a supplementary protection certificate (certificate) for the active ingredients or combination of active ingredients of medicinal products. 2 Active ingredients or combinations of active ingredients are referred to in this Section as products.
Art. 140b 1 The certificate is granted if, at the time of the application:
a. the product as such, a process for manufacturing it or a use of it is protected by a patent;
b. official authorisation has been granted for placing the product on the market in Switzerland as a medicinal product.
2 It is granted based on the first authorisation.
Art. 140c 1 The proprietor of the patent has the right to the certificate. 2 Only one certificate shall be granted for each product.244 3 In the event that two or more proprietors of a patent file applications for the same product based on different patents and no certificate has yet been granted, the certificate may be granted to each applicant.245
240 Inserted by No 1 of the Federal Act of 3 Feb. 1995, in force since 1 Sept.1995 (AS 1995 2879; BBl 1993 III 706).
241 Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
242 Title inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
243 Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
244 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
245 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
A. Principle
B. Conditions
C. Right
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Art. 140d 1 The protection of a certificate extends, within the limits of the scope of protection conferred by the patent, to any use of the product as a medicinal product that has been authorised before the expiry of the certificate. 2 The certificate grants the same rights as the patent and is subject to the same restrictions.
Art. 140e 1 The certificate takes effect on expiry of the maximum term of the patent for a period equal to the period which elapses between the date of filing under Article 56 and the date of the first authorisation to place the product on the market as a medicinal product in Switzerland, minus five years. 2 It is valid for no more than five years. 3 The Federal Council may specify that the authorisation granted in the European Economic Area (EEA) constitutes the first authorisation within the meaning of paragraph 1 if it is granted earlier than the first authorisation in Switzerland.
Art. 140f 1 The application for the grant of a certificate must be filed:
a. within six months of the first authorisation to place the prod- uct on the market in Switzerland as a medicinal product;
b. within six months of the grant of the patent if this was granted later than the first authorisation.
2 In the event that the time limit is not met, the Institute shall refuse the application.
Art. 140g The Institute grants the certificate by entering it in the Patent Register.
Art. 140h 1 The certificate is subject to the payment of an application fee and renewal fees. 2 The renewal fees must be paid in advance in one single payment for the full term of the certificate.246 3 …247
246 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
D. Subject- matter of protection and effects
E. Term of protection
E. Time limit for filing the application
G. Grant of the certificate
H. Fees
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Art. 140i 1 The certificate lapses where:
a. the owner surrenders it by a written declaration to the Insti- tute;
b. the annual fees have not been paid in due time; c. the authorisation to place the product on the market as a me-
dicinal product is withdrawn. 2 If the authorisation is suspended, the certificate is also suspended. Suspension does not interrupt the term of the certificate. 3 The authority that grants authorisations shall notify the Institute of any withdrawal or suspension of the authorisation.
Art. 140k 1 The certificate is null and void where:
a.248 it was granted contrary to Article 140b, Article 140c para- graph 2, Article 146 paragraph 1 or Article 147 paragraph 1;
b. the patent lapses before its maximum term expires (Article 15);
c. the patent is declared null and void; d. the patent is limited to the extent that the product for which
the certificate was granted is no longer covered by the claims; e. after the lapse of the patent, grounds exist which would have
justified the declaration of nullity of the patent under letter c or a limitation under letter d.
2 Any person may bring an action to have the certificate declared null and void before the authority responsible for declaring the nullity of the patent.
Art. 140l 1 The Federal Council shall lay down the procedure for the grant of certificates and for their entry in the Patent Register and the Institute’s publications. 2 It shall take account of the regulations of the European Community.
247 Repealed by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
248 Amended by No I of the Federal Act of 9 October 1998, with effect from 1 May 1999 (AS 2008 2551; BBl 1998 1633).
I. Premature lapse and suspension
K. Nullity
L. Procedure, Register, publications
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Art. 140m Insofar as the provisions concerning the certificate do not contain any regulations, the provisions of the first, second, third and fifth Titles of this Act apply by analogy.
Section 2:249 Supplementary Protection Certificates for Plant Protection Products
Art. 140n 1 The Institute shall on application grant a supplementary protection certificate (certificate) for active ingredients or combination of active ingredients of plant protection products. 2 Articles 140a paragraph 2 to 140m apply by analogy.
Final Title: Final and Transitional Provisions250
Art. 141251 1 The Federal Council shall take the necessary measures to implement this Act. 2 It may, in particular, enact regulations on the formation of the exam- ining sections and opposition divisions, on the scope of their business and procedures as well as on time limits and fees.252
249 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
250 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
251 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1977 1997; BBl 1976 II 1).
252 Amended by Annex No 23 of Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (AS 2006 2197; BBl 2001 4202).
M. Applicable law
A. Implementing measures
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Art. 142253
Patents that have not yet lapsed when the Amendment to this Act of 22 June 2007 comes into force are subject to the new law from that date. Grounds for nullity continue to be governed by the previous law.254
Art. 143255 1 Patent applications that are pending when the Amendment to this Act of 22 June 2007 comes into force are subject to the new law from that date. 2 However, the following are also governed by the previous law:
a. non-prejudicial disclosures at international exhibitions; b. patentability, if the requirements are more favourable under
the previous law.
Art. 144256
Art. 145257 1 Liability under civil law is regulated by the provisions in force at the time of the act concerned. 2 Article 75 and Article 77 paragraph 5 apply only to licence agree- ments that have been concluded or confirmed after the Amendment to this Act of 22 June 2007 comes into force.258
253 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
254 Second sentence inserted by Annex No 3 of the Patent Attorney Act of 20 March 2009, in force since 1 July 2011 (AS 2011 2259; BBl 2008 407).
255 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
256 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). Amended by No I of the Federal Act of 22 June 2007, with effect from 1 July 2008 (AS 2008 2551; BBl 2006 1).
257 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan.1978 (AS 1977 1997; BBl 1976 II 1).
258 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 (AS 2008 2551; BBl 2006 1).
B. Transition from the old to the new law I. Patents
II. Patent applications
III. Liability under civil law
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Art. 146259 1 A supplementary protection certificate may be granted for any product which, on the Amendment to this Act of 9 October 1998260 coming into force, is protected by a patent and for which an authorisation to place it on the market in accordance with Article 140b was granted after 1 January 1985. 2 The application for the grant of a certificate must be filed within the six months of the Amendment to this Act of 9 October 1998 coming into force. In the event that the time limit is not met, the Institute shall refuse the application.
Art. 147261 1 Certificates may also be granted on the basis of patents that have lapsed at the end of their maximum term between 8 February 1997 and the Amendment to this Act of 9 October 1998262 coming into force. 2 The term of protection of the certificate is calculated in accordance with Article 140e; its effects do not begin until the publication of the application for the grant of a certificate. 3 The application must be filed within two months of the Amendment to this Act of 9 October 1998 coming into force. In the event that the time limit is not met, the Institute shall refuse the application. 4 Article 48 paragraphs 1, 2 and 4 apply correspondingly for the time period between the lapse of the patent and the publication of the application.
Art. 148263 1 No translation of the patent specifications under Article 113 para- graph 1264 is required for European patents which are not published in one of the official Swiss languages if the mention of the grant of the European patent, or in the case of the maintenance of the patent in amended form the publication of the decision regarding an opposition,
259 Inserted by No I of the Federal Act of 3 Feb. 1995 (AS 1995 2879; BBl 1993 III 706). Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
260 AS 1999 1363 261 Inserted by No I of the Federal Act of 3 Feb. 1995 (AS 1995 2879; BBl 1993 III 706)
Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 (AS 1999 1363; BBl 1998 1633).
262 AS 1999 1363; BBl 1998 1633 263 Inserted by Art. 2 of the Federal Decree of 16 Dec. 2005 on the Approval of the
Agreement on the Application of Article 65 of the European Patent Convention and on the Amendment of the Patents Act, in force since 1 May 2008 (AS 2008 1739; BBl 2005 3773).
264 AS 1977 1997
C. Supplemen- tary protection certificates for plant protection products I. Authorisation prior to entry into force
II. Lapsed patents
D. Transitional provisions on the Amendment to the Patents Act of 16 December 2005
Patents Act
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or in the case of a limitation of the patent the mention of the limitation has been published in the European Patent Bulletin less than three months prior to the Amendment to this Act of 16 December 2005 coming into force. 2 Articles 114265 and 116266 also apply after the Amendment to this Act of 16 December 2005 comes into force to translations which have either been sent to the defendant in accordance with Article 112267, or made public by the Institute or which have been submitted to the Institute under Article 113268.
Commencement date: 1 January 1956269 Art. 89 para. 2, Art. 90 para. 2 and 3, Art. 91 para. 2 and 3, Art. 96 para.1 and 3, Art. 101 para. 1, Art. 105 para. 3: 1 October 1959270
265 AS 1977 1997, 1999 1363 266 AS 1977 1997 267 AS 1977 1997, 1999 1363 268 AS 1977 1997, 1995 2879, 2007 6479 269 Federal Council Decree of 18 Oct. 1955 270 Federal Council Decree of 8 Sept. 1959 (AS 1959 861)
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