Amendment of the Swiss Patent Law

Newsflash 13/2008

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Source: Swiss Federal Institute of Intellectual Property 

The amended federal law on patents for inventions, which will come into force 1 July, 2008, aims to adapt the Swiss patent law to technological progress and new international developments which have intervened during the past years.

The amendment introduces numerous substantial modifications which essentially concern the protection of inventions in the field of biotechnology. It also creates important changes in the procedure for granting Swiss patents; these are summarized below.

1. Publication of patent applications

One of the main changes in procedure concerns the publication of patent applications. Up until now, only the granting of a patent resulted in the patent document being published in Switzerland, thus disclosing the invention. This meant that inventions with pending patents were not made public and the object for which a patent was finally granted was often disclosed after a significant time lapse from the date of filing, a lapse which could be several years.

In order to assure a more rapid distribution of technical knowledge and to improve the position of the applicants as well as third parties, Switzerland decided to conform to the international standards and introduce the publication of a patent application 18 months after the date of filing or date of priority.

The amendment will apply only to patent applications which are filed after the revised law enters into force.

2. Prior Art Search for Swiss Patent Application

Under Swiss law, patent applications are not examined for novelty or inventive step as part of the examination procedure. However, the amended law introduces the option for the applicant to request a prior art search for a Swiss patent application from the Institute. This optional search, which must be requested within 14 months of the date of filing or priority and which has a fee (CHF 500) results in a search report which is published with the patent application.

In place of this optional search, the applicant can always request an international search within six months from the date of filing. The resulting search report is likewise published with the patent application.

The revised law also allows third parties to request a prior art search report for a published patent application or a granted Swiss patent. In this case, the search report is not published.

The report compiled by the Institute as part of the search for a Swiss patent application may only be re-quested for patent applications filed after the amended law has entered into force.

3. Filing opposition

The amended law provides the right to oppose a patent granted under the new law. However, it is limited to questions of exclusion for patentability, notably for inventions in the domain of biotechnology. Filing opposition, which costs CHF 800, must be done with the Institute within nine months of the date the patent is granted. The procedure may result in the patent being upheld, modified, or cancelled.

4. Miscellaneous

• In applying the Patent Law Treaty ratified by Switzerland, the new law eases requirements for filing an application for a Swiss patent in regards to language and filing formalities. It will be possible, for example, to file an application in a language other than French, German, or Italian and to submit a translation in an official language later.
  
  
• As of 1 July 2008, data concerning Swiss protective rights titles as well as Swiss patent documents will be published exclusively in electronic form. Additionally, only the information published in the data-base www.swissreg.ch, which is accessible online free of cost and which replaces the current paper-copy publication, will be binding.
  
  
• As of the date when the amended law enters into force, the Institute will no longer give out information regarding applications for Swiss patents which have not been published. After publication, all useable information will be available free of charge at the website address www.swissreg.ch.
  
  
• In consideration of new publications, all the codes identifying various types of Swiss patent documents have been completely revised according to the World Intellectual Property Organization (WIPO) Standard ST. 16.

The new codes which will be applied when the amendment enters into force are as follows:

Except for the regulations concerning the publication of applications and the prior art search for a Swiss patent application, the new legislative provisions will have effect for all Swiss patent applications which are pending on the day the law enters into force.