Information from Switzerland and Intellectual Property Conventions concerning Switzerland
The following information is not to be construed as legal advice.
Though due care is invested in compiling these data,
no responsibility whatsoever for completeliness or correctness thereof can be taken over.
EPC: European Patent Convention; PCN: Paris Convention; PCT: Patent Cooperation
Treaty; MMA/P: Madrid Convention/Protocol; THA: The Hague Agreement; CTM:
Community trademark (European Union); otherwise ISO-Country-Codes
Last update: 13 November 2018.
|01 JAN 2019
Revised Swiss patent law (SPL) and Ordinance will enter into force on 1
January 2019 simultaneously with modified Therapeutics Products Act (cf. protection of admission
documentation). Important modifications are:
- Freedom of therapeutic measures is safeguarded for medical personnel (doctors) and pharmacists,
in particular in case of preparation of individual compositions. (A. 9(1)a(bis)-a(10), f(bis), h-k SPL
- Promotion of development of pediatric pharmaceuticals by an extension of SPC or patent term
by 6 months (A. 140a(1); A. 140n-y SPL). In contrast to the provision in the European Union (EU), the patent term
may be extended without requesting
an SPC. As well, analogous to the practice in the EU,
an SPC having a negative term may be obtained.
For a request for a pediatric extension being validly filed,
admission of the respective pharmaceutical
has to be requested in Switzerland including required documentation regarding pediatric use, and a
corresponding first request has to be filed in the EEE not earlier than 6 months before.
Secondly, the request has to be filed two years before expiry of the patent
(pediatric certificate) or two years before expiry of the SPC (extension of an SPC). In the
latter case, it need to be filed wiht the request of the SPC, yet not earlier.
It is to be noted, that a SPC and pediatric SPC are mutually exclusive, i.e. an SPC
is no more available if a pediatric SPC is obtained. (A. 140a SPL)
|22 OCT 2018
Retroactively to 10 June 2018, the Institute applies the
changed rule of validity of an SPC according to the decision 4a_576/2017 of the
Federal High Court: Examination practice is essentially adapted to that
within the European Union in the aftermath of Medeva and EliLily
(cf below, 4a_576_2017)
Website of the Institute of Intellectual Property
|10 JUN 2018
By decision 4a_576/2017, the Federal High Court
followed the decision of the ECJ (European Court of Justice) in cases "Medeva"
(C-322/10 of 24 November 2011 Medeva BV, Slg. 2011 I-12051) and "Eli Lily"
(C-493/12 of 12 December 2013): The product (or the agent in combination products)
has to be explicitly or
implicitly mentioned in the claims. Decision
BGE 124 III 375 "Fosinopril" is abolished thereby.
However, the Court held that this change is not applicable to a granted SPC.
Hence, the respective appeal has been refused, the attacked SPC being correctly
granted: At the time of the respective application having been filed and granted,
case law applied. An overwhelming (public) interest in a retroactive application
has not been denied.Website of the Federal High Court
|22 FEB 2018
In decision B-1156/2016, Federal Administrative Court
has held that errors of auxiliary persons are the responsibility ofthe patent owner.
They can not be used as an excuse for havving omitted a duty, in the present case the duty to pay an annuity.
In the present case, information that an annuity has not been paid and finally the
information that the patent has been annulled because an annuity has not been paid -
which still provides the option to restore the patent by a request of further processing -
have been disregarded. This bevaviour is deemed not to comply with the standard of due
diligence - absent, of course, extraordinary circumstances causing such a negligence.
As of 5 November 2018, no hint that an appeal has been filed, is perceivable,
and the decision has been cited in ulterior decisions.
Website Federal Adminstrative Court
|1 JAN 2018
Starting with 1 June 2018, decisions in Summary Proceedings will be issued non-anonymized (except for special reasons).
Website of the Federal Patent Court
|1 JAN 2016
The Institute will accept the Service "client specific production" in class 40 according the new 10th issue of the Nice classification. The explanation of this issue specifically mentions this service as comprised in class 40. The change of practice of the Institute is applied to all Swiss trade/service mark application which are pending on and after 1 january 2016.
Sic! 2016/1 (2016) 30
|01 OCT 2015
The Federal Administrative Court increases the fees:
- Appeals, one preceding instance, ex parte: Advance of CHF 3'000.00 (previously: 2'500.00)
- Appeal, one preceding instance, inter partes: Advance of CHF 4'500.00 (previously: 4'000.00)
In line thereto, the court fee will be increased. The modification of the fees levied
follows the decision of the Federal Court (BGE 122 III 490), wherein the manner of
determining the litigation value has been fixed.
Sic! 2015/7/8 (2015) 497
|1 JUN 2012
In the aftermath of the decision of the European Court of Justice of 8 December 2011
(C-125/10: Merck Sharp & Dohme Corp vs German Patent and Trademark Office), the Swiss Institute of Intellectual Property
will issue SPCs with a zero term or even a negative term. Such an SPC will, though, may allow the owner to profit from an additional term of protection
for pediatric pharmaceuticals of 6 months which will provisionally be provided by the current revision of the Swiss law of medicals but
only for an SPC.
This change of the examination practice takes effect immediately.
Sic! 2012/6 (2012) 419
|1 JUL 2011
The Swiss Patent Attorney Law will enter into force on 1 July 2011. Some important points:
- Once the transitional period of 2 years has expired, only persons entered in the official registry have the right to use the titel Patent Attorney, consulente in brevetti, Conseil en brevet, or Patentanwalt.
- Only registered patent attorneys if appointed as independent representatives may act before the Federal Patent Court, be it as the only representative in nullity matters, be it in collaboration with a lawyer for technical aspects.
- Patent attorneys are obliged to keep confidential any secrets known to them during professional activity. (Art. 10 PAnwG)
The list of registered Swiss patent attorneys is available on the website of the Institute. All patent attorneys of our firm are entered.
|1 JUL 2008
Revision of the patent law of 22 June 2007 and the federal decree of 22 June 2007 setting the PLT into force: Besides merely formal
modifications, they contain:
- Required adaptations to the PLT
- Publication: Patent applications will be published 18 months after the filing or priority date, whichever
is earlier. The report of the International-Type Search (PCT Art. 15(c)) or the Report of the State of the Art
(cf. below) will be published together with the patent application, unless the Search or Report is established
at a later date.
- Search: The "Report of the State of the Art" is a less expensive alternative to the
International-Type Search. This search is conducted by the IIP . The rules for conducting the search are
similar to those of a European Search. The Report may be requested within 14 months after the priority date,
and unlike the International-Type Search, it is available for a patent application claiming
the priority of an earlier filing. Summing up, the Report is a cost-effective option to obtain
an official search report. Finally, anybody who has the right to request an inspection of the file
may also request that a Report of the State of the Art be established.
- Secrecy: No information is available to third parties up to the publication
of the patent application any more.
- Genetic Resources / Traditional Knowledge: The applicant has to disclose the origin of such information
if the invention is directly based thereon. Intentional false information may be punished by a fine up to
- Biotechnological Inventions: Patentability of inventions in relation to the human body is limited.
In general, neither any product or method resulting from using human stem cells or germ material,
nor any result therefrom are patentable, and of course neither the human being himself nor the embryo.
The patentability of the use of embryos, however, is only excluded for non-medical purposes.
- First and Second Medical Indication: As in the EPC 2000, a substance or blend is patentable
if not known to be applicable in a surgical, therapeutical or diagnostical method. The same applies
to the use of a substance or blend for producing a composition which serves a surgical, therapeutical or
diagnostic purpose. This corresponds to the well-known "Swiss-type claim".
- Effect of a Patent: The patent grants the right to prohibit any third party to use the invention
for commercial purposes . If the subject of a patent is a product based on or comprising genetic information,
the patent protection extends to any material which comprises the product and in which the genetic information
is effective. In case of a patent on a method where the product of the method is a biological material,
the protection extends to any material obtained by reproduction of the biological material as far
as the reproduced material shows the same properties.
- Privileged Uses: Exempt from the effect of a patent, i.e. considered non-commercial,
are the following:
- Private activities without commercial purpose.
- Research and trials for obtaining knowledge on the invention and its use.
- Activities required for the admission of pharmaceuticals in Switzerland and other countries
with comparable admission control of pharmaceuticals.
- Use of the invention for education (schools etc.).
- Use of biological material for breeding or for the discovering and developing of a plant variety.
- Obtaining a biological material, where the material is produced by accident
or by a technically unavoidable process in agriculture.
- Furthermore, any arrangement restricting these exemptions is null and void.
- Immunity to Patent Rights: The permission of the patent owner for rendering a product
publicly accessible (importing etc.) in Switzerland is not required if other intellectual property rights
in this product exist and if the patent protection is of minor importance for the function of the product.
- Opposition may be filed against a patent which allegedly violates certain absolute requirements
of patentability, namely those of Art. 1a, 1b and 2 Swiss patent law. These articles essentially
stipulate the non-patentability of the human being, naturally existing genetic sequences and inventions
contradicting the ordre public, morality, or the dignity of man or any creature./li>
- Additional possibilities of license by law for pharmaceuticals in line with WTO regulations
have been provided.
- The Assistance of the customs is available for the temporary seizing of imported goods.
The customs may not only act on a preliminary request by the patent owner, but also on its own initiative.
|1 JUL 2008
Starting with 1 July 2008, the following fees will be
- Patents: The annuity for year 7 and 8 is reduced from CHF 310 to CHF 200.
- Trademarks: The prolongation fee is reduced from CHF 700 to CHF 550
|12 JUN 2006
EPC 2000 ratified by Switzerland on 12 June 2006.
|15 DEC 2005
Both chambers of the Swiss parliament have passed the first part of the amendments to the Swiss patent law. It comprises the necessary amendments in view of the revision of the EPC which will enter into force on 13 December 2007 the latest, and in view of the convention with respect to languages within the EPC. Regarding Switzerland, the entering into force of the convention (not the present amendment by itself) will cause European patents to be valid in Switzerland without the need of filing a translation into a Swiss official language.
The amendment is open to a voluntary referendum until 6 April 2006.
Sic! 2006/3 (2006) 214
|23 DEC 2003
||TH GE CH
||The Geneva Act is in force as of 23 December 2003 inter alia for Switzerland and Liechtenstein. For details on this addition to the The Hague Agreement, visit WIPO. The revised Common Regulation may be found on the website of WIPO as well.
WIPO Information Notice 12/2003 (2003)
|01 Jul 2002
International Trademark Registration – New Practice in Switzerland
Practice for cases, where an international registration – especially because of a geographical indication contained in the mark – is subject to a restriction of the list of goods/services.
(Trilingual (French/German/English) flier in PDF-format)
If in a notification ("avis de refus provisoire partiel") issued during the international procedure, the Institute was of the opinion that the list of goods/services was to be restricted for the above mentioned reason, the owner was so far not obliged to give his explicit approval. After expiry of the delay for responding without reaction of the owner, the Institute issued a "avis de refus définitif partiel", i.e. the trademark was accepted for protection in Switzerland with the mentioned restriction.
From now on, the Institute will systematically issue an "avis de refus provisoire total", if an international registration – the mark being a priori distinctive – contains an indication of origin. Then, the owner is obliged to give his explicit approval or to file counterarguments, in order to avoid rejection.
|01 Jul 2002
||New Swiss design law ("Designgesetz") is in force since 1 July 2002. Some main modifications in comparison with the earlier law of designs and models ("Muster- und Modellgesetz"):
For further details, please visit the homepage of the Institute or more specifically the part relating to design protection in English, French or German.
- Any design registration still valid on 1 July 2002 will automatically become a subject of the new design law. This engenders to furnish images for publication at the occasion for the 4th renewal.
- Any registered design will be published. Publication may be deferred up to 30 months on request and on payment of the respective fee.
- Term: maximally 25 years calculated from the filing date; renewal periods: 5 years.
- Images capable to be published have to filed in the request. The design itself is no more sufficient. Note: in case of a 2-dimensional design, a protoype of the design may be filed if and onyl if the publication is deferred. Before publication, images have though to be produced. Images may be filed on data carrier (CD-Rom, 3 1/2 floppy disk) in prescribed formats (PC compatible; JPEG, TIFF, GIF, PSD, PCD, BMP, EPS; proposed resolution 300 dpi) (Ammann's remark: the examples proposed by the Institute give reason to recommend a higher resolution - 300 dpi appears to be at lower edge of admissibility.)
- A statement of succession in right from the author to the applicant is no more required.
|03 Oct 2000
||Practice with respect to Swiss Cross and Red
Cross modified: the Federal Committee of Appeal has handed down decisions
with regard to registrability of trademarks and designs comprising the
Red Cross or the Swiss Cross ("Cercle", Sic! 1999 (1999) p. 36 et seq.,
resp. "Croix rouge", Sic! 1999 (1999) p. 290 et seq.). Accordingly, the
FIIP has modified its practice:
With respect to international designs and trademarks, the FIIG will as
before issue an "avis de refus", yet announce that the refusal will be
withdrawn if the applicant files the waiver set forth above. If this request
is not filed within the prescribed delay, an "avis de refus final" will
be issued. (Sic! 2000/6 (2000) p. 553/4).
A trademark comprising a cross shaped like the Swiss Cross or the Red Cross
are accepted if it is renounced to the use of colour combination red/white
and white/red (colour of cross/colour of background) and any other appearance
leading to a confusion with these specially protected crosses.
A design will be accepted if the protection of the cross is waived.
|01 Jan 2000
||Reduction of fees and amended rules get in force:
fee for a 2nd and each further of a set of identical priority documents
is decreased to CHF 10.-
annuity fee for patents and patent applications decrease from CHF 530.-
to CHF 420.-;
fee for partial waiver is reduced by half;
no fees anymore for: printing of the patent; (1st as well as 2nd) extension
of timelimits; late filing of priority declarations, interruption of procedure;
the reduction for paying 5 annuity in advance as a lump sum is discarded;
preliminary technical examination no more possible;
fee for excess claims (11th and each further) is due at closure of examination
fee for transfer of right and registering of licence is reduced from CHF
100.- to CHF 50.- for the second and each further trade/service mark of
the same owner.
|01 Dec 1999
||The Federal Court handed down his decision that
for patents, national exhaustion applies (KODAK case; decided in contrast
to the right of author and the trademark law).
|01 Oct 1999
||Timelimit for requesting examination is now 2
months instead of one month (Information of the Institute).
International (PCT) patent applications may be filed with the Institute
|01 May 1999
||Supplementary protection certificate (SPC) for
plant protection products available in Switzerland. Rules are identical
to SPC for pharmaceutical products and ressemble closely those for the
equivalent EU SPCs. Transitory regulations: product on the market, patent
expired in the period from 8 February 1997 to 1 May 1999: request has to
be submitted by 1 July 1999; product on the market (admission for
sale in Switzerland obtained after 1 January 1985), patent in force: request
has to filed by 1 November 1999. (Swiss patent Law amendment as
set in force on 1 May 1999).
|01 Jan 1998
||Annuity fees for Swiss patents, patent applications
and Swiss parts of European patents become due the first time for the fifth
year, e.g.: filing date in 1995: first annuity due in 1999.
the Federal Institute of Intellectual Property
is the successor organisation of the former Federal Office for Intellectual
Property. The Institute is not an office, but a private organisation which
has certain state powers and is supervised by the government.
Official Collection of Swiss Law
EP OJ: Official
Journal of the European Patent Office,EPO
PCT Newsl: PCT
No. 115 (E)
WIPO Information Notice: Information notice of WIPO, enclosed to other publications, particularly the WIPO Gazette of International Marks.
ISO country codes: Country codes according to WIPO standard ST.3.
ST.3 is based n the ISO standard
(According to the Annual report 1999 of the Secretariat
of the ISO 3166 Maintenance Agency: "This website is the only one authorized
by the ISO3166/MA Secretariat and guaranteed to be updated whenever there
is a change in the list of country names and code elements.")