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 of 25 June 1954 (Status as of 1 January 2017) The Federal Assembly of the Swiss Confederation, on the basis of Article 122 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
(Patents Act, PatA)

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 certificate, 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 1883⁴⁷ or the Agreement Establishing the World Trade Organization of 15 April 1994⁴⁸, (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.49

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.50

Except as otherwise provided by this Act or by the Ordinance, paragraph 1 above and Article 4 of the Paris Convention for the Protection of Industrial Property of 20 March 1883 apply by analogy to a first filing in Switzerland.51

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to

Inserted by No I of the Federal Act of 17 Feb. 1976, in force since 1 Jan. 1978

Inserted by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995

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.52

…53

…55

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.56

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.57

Any person claiming a right of priority must file a declaration of priority and a priority document with the IPI.

The right of priority is forfeited if the time limits and formal requirements laid down by the Ordinance are not complied with.

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.

The filing on the basis of which priority is claimed is presumed to be the first filing (Article¹⁷ para. 1 and 1bis).59

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Sept. 1978

Repealed by No I of the Federal Act of 17 Dec. 1976, with effect from 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Repealed by No I of the Federal Act of 17 Dec. 1976, with effect from 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1. Jan. 1978 E. Prohibition of double patenting 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.

The proprietor of the patent may partially surrender the patent by requesting the IPI to:

1. revoke a patent claim (Art. 51 and 55); or

2. limit an independent claim by combining one or more patent claims, which are dependent on it; or

3. 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 published patent and in the version of the patent application that determined the date of filing.

…63

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.

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.

Inserted by No I of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995

Repealed by No I of the Federal Act of 17 Dec. 1976, with effect from 1 Jan. 1978

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

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).

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Following registration of the partial surrender in the Patent Register, the IPI 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.

The court shall, on application, declare the nullity of the patent if:

1. the subject-matter of the patent is not patentable under Artib. 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;

3. the subject-matter of the patent goes beyond the content of the patent application in the version that determined the filing date;

4. the proprietor of the patent is neither the inventor nor his successor in title, nor has a right to the grant of the patent on other legal grounds.65 2 Where a patent is granted with recognition of priority, and the application 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.66

Where a ground for nullity applies to only a part of the patented invention, the court shall limit the patent accordingly.

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 IPI.

Article 25 applies by analogy.

Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008

Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 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.

When the patent application has been filed by an applicant who, I. Conditions and 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.

…69

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.70

Any claims for damages are reserved.

Article 40e applies by analogy.71

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.72

Article 25 applies by analogy.

Inserted by Art. 2 of the Federal Decree of 16 Dec. 2005 on the approval of the Act to

Repealed by No I of the Federal Act of 17 Dec. 1976, with effect from 1 Jan. 1978

Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995

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 17 Dec. 1976, in force since 1 Jan. 1978 (AS 1997 1997; BBl 1976 II 1).

An action for assignment must be filed within two years from the official date of the publication of the patent specification.

An action against a defendant acting in bad faith has no filing deadline.

Where public interest so dictates, the Federal Council may expropriate all or part of the patent.

The former proprietor of an expropriated patent is entitled to full compensation which, in the event of any dispute, is fixed by the Federal Supreme Court; the provisions of Section II of the Compulsory Purchase Act of 20 June 1930⁷³ apply by analogy.

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.

Where the said rights are owned by two or more persons, each entitled 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.

The transfer of a patent application and of the patent by legal act is valid only if evidenced in writing.74

A patent may be transferred without the transfer being recorded in the Patent Register; however, until an entry is made, any action provided for in this Act may be taken against the former proprietor of the patent.

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.

The patent applicant or the proprietor of the patent may grant third parties the right to use the invention (grant of licences).

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 entitled persons.

Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978

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.

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.75

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.

A patent has no effect with regard to vehicles which are only temporarily in Switzerland, nor to equipment attached to these vehicles.

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.

Farmers who have acquired animal reproductive material or animals placed on the market by the proprietor of the patent or with his consent may reproduce, on their own farm, the animals obtained through reproduction of this material or these animals on their own farm.

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.

Contractual agreements which limit or revoke the farmers’ privilege in the area of food and feed production are null and void.

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).

Inserted by Art. 2 No² of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 II. Scope and compensation The Federal Council determines the plant species included under the farmers’ privilege; in so doing, it shall in particular take into consideration their importance as raw materials for food and feed.

If a patented invention cannot be used without infringing a prior patent, the proprietor of the later patent has the right to a nonexclusive licence to the extent required to use his invention, provided that the invention represents an important technical advance of considerable economic significance in relation to the invention that is the subject-matter of the prior patent.

A licence to use the invention that is the subject-matter of the prior patent may only be transferred jointly with the later patent.

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.

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 economic significance in comparison to the patent-protected invention. For varieties for agriculture and food, the criteria under the Seed Ordinance of 7 December 1998⁸¹ serve as a reference point.

The proprietor of the patent may make the grant of a licence conditional on the owner of the plant variety granting him a licence to use his plant variety right in return.

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- I. Action for the mate interest may apply to the court for the grant of a non-exclusive

Inserted by Art. 2 No² of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008

Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995

Amended by Art. 2 No² of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008

Inserted by Art. 2 No² of the Federal Decree of 5 Oct. 2007, in force since 1 Sept. 2008 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.82

…83

At the request of the plaintiff, the court may grant a licence immediately after the action has been filed without prejudice to the final judgment providing that, in addition to the conditions set out in paragraph 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.84

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.

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 cancellation 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.85

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.86

Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995

Repealed by No I of the Federal Act of 16 Dec. 1994, with effect from 1 July 1995

Amended by No I of the Federal Act of 16. Dec. 1994, in force since 1 July 1995

Amended by No I of the Federal Act of¹⁷. Dec. 1976, in force since 1 Jan. 1978

Amended by No I of the Federal Act of¹⁷. Dec. 1976, in force since 1 Jan. 1978

…87 For inventions in the field of semi-conductor technology, a nonexclusive licence may only be granted to remedy a practice held to be anti-competitive in court or administrative proceedings.

Any person may bring an action before the court to be granted a nonexclusive licence for the manufacture of patent-protected pharmaceutical 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).

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 beneficiary countries.

The licence in accordance with paragraph 1 is limited to the production of the pharmaceutical product in the quantity that meets the

Repealed by No I of the Federal Act of 16. Dec. 1994, with effect from 1 July 1995

Inserted by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995

Inserted by No I of the Federal Act of 16 Dec. 1994 (AS 1995 2606; BBl 1994 IV 950).

Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008

Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 requirements of the beneficiary country; the total quantity must be exported to the beneficiary country.

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.

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.

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 unsuccessful; in the case of a licence in accordance with Article 40d, a period of

working days is regarded as reasonable. Such efforts are not required in situations of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.

The scope and term of the licence are limited to the purpose for which it has been granted.

The licence may only be transferred with that part of the enterprise which uses the licence. This also applies to sub-licences.

The licence is primarily granted for supplying the domestic market.

The proprietor of the patent has the right to appropriate remuneration. In assessing the remuneration, the circumstances of the individual case and the economic value of the licence are taken into account. In the case of a licence under Article 40d, the remuneration is determined 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.

The court shall decide on the grant and revocation of licences, on their scope and duration as well as on the remuneration payable. In

Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 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.

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 Implementing Ordinance or one set by the IPI, he shall be granted, on request, the re-establishment of his rights.

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 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.

Re-establishment of rights shall be ruled out in respect of paragraph

above (time limit for the request for re-establishment of rights).

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.

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:

1. between the last day of the time limit stipulated for payment of a patent renewal fee (…105) and the day on which a request for further processing (Art. 46a) or a request for re-establishment of rights (Art. 47) was filed;

2. between the last day of the priority period (Art.¹⁷ para. 1) and the day on which the patent application was filed.106 2 This prior user right is governed by Article 35 paragraph 2.

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.

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.

There is no obligation to be represented before the administrative authorities in proceedings under this Act.

Any party who does not want to represent himself in proceedings under this Act before the administrative authorities must be represented by a representative with an address for service in Switzerland.

Any person who wishes to obtain a patent for an invention must file a patent application with the IPI.

The patent application must contain:

1. a request for the grant of a patent;

2. 110a 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;

3. one or more patent claims;

4. the drawings to which the description or claims of the patent refer;

5. an abstract.111 3 …112

The patent application must contain information on the source:

1. of the genetic resource to which the inventor or the patent applicant had access, provided the invention is directly based on this resource;

2. of traditional knowledge of indigenous or local communities of genetic resources to which the inventor or the patent appli- 109 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 110 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 111 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 112 Repealed by Annex No⁴ of the Federal Act of 24 March 1995 on the Statute and Tasks of 113 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 cant had access, provided the invention is directly based on this knowledge.

If the source is unknown to the inventor or the patent applicant, the patent applicant must confirm this in writing.

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.115

…116

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.

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.

The invention is deemed to be disclosed in accordance with Article 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.

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.

The invention must be defined in one or more patent claims.

The claims of the patent shall determine the scope of protection conferred by the patent.

The description and drawings must be used to interpret the patent claims.

Each independent claim may define one invention only, namely:

1. a process; or

2. a product, a means for performing a process or an apparatus; or

3. an application of a process; or

4. a use for a product.

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.

The date of filing is the day on which the last of the following items are filed:

A patent application resulting from the division of an earlier application shall be given the same filing date as the earlier application:

1. if, at the time of its filing, it is expressly designated as being a divisional application;

2. if, at the time of filing of the divisional application, the earlier application was still pending; and

3. insofar as its subject-matter does not extend beyond the content of the earlier application as originally filed.

…129

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.

The technical documents may not be modified such that the subjectmatter of the modified patent application extends beyond the content of the technical documents originally filed.

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 preparations 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.

If the subject-matter of the patent application does not fall within Articles 1, 1a, 1b and² or does so only in part, the IPI shall inform the patent applicant accordingly, stating the reasons, and shall set him a time limit within which to respond.133

If the patent application does not meet the other requirements of this Act or the Ordinance, the IPI shall set a time limit for the patent applicant by which the deficiencies must be remedied.134

…135

The Institute shall not examine whether the invention is new or whether it is obvious having regard to the state of the art.136

In return for the payment of a fee, the applicant may:

If the requirements for the grant of a patent are fulfilled, the IPI shall inform the patent applicant that the examination procedure has been completed.

…140

The Institute shall reject the patent application if:

1. the application has not been withdrawn even though a patent may not be granted for the reasons stated in Article 59 paragraph 1; or

2. the deficiencies mentioned in Article 59 paragraph 2 have not been remedied.

Within nine months of the publication of the entry in the Patent Register, any person may give notice of opposition to the IPI to a patent which has been granted by the latter. The notice of opposition must be filed in a written reasoned statement.

Opposition may only be filed on the grounds that the subject-matter of the patent is not patentable under Articles 1a, 1b and².

If the IPI 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 Administrative Court.

The Federal Council shall regulate the particulars, in particular the procedure.

The Institute shall grant the patent by registering it in the Patent Register.145

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.146

Any modifications concerning the validity of the patent or the right to the patent must be entered in the Patent Register.

…147

The Institute shall publish:

The Institute shall determine the organ of publication.150

The Institute shall publish a patent specification for each patent granted.154

This shall contain the description, the patent claims, the abstract, the drawings if any, and the particulars recorded in the Register (Art. 60

As soon as the patent specification is ready for publication, the IPI shall issue a patent certificate.

This consists of an attestation confirming the legal conditions for obtaining a patent have been met and a copy of the patent specification.

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.

The Federal Council shall regulate the cases in which inspection of the dossier is permitted prior to the publication of the patent application. It shall also regulate, in particular, the inspection of patent applications that were rejected or withdrawn before publication.

The Federal Council may authorise the IPI to regulate electronic communication in accordance with the general provisions on the administration of federal justice.

The dossier and the files may be maintained and stored in electronic form.

The Patent Register may be maintained in electronic form.

The Institute may make its data accessible, particularly online, to third parties; it may demand remuneration for this service.

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.

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.

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.

The parties' manufacturing or trade secrets must be safeguarded.

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.

In the event of a conviction, the court may order the forfeiture and sale or destruction of the unlawfully manufactured products or equipment, devices and other means that primarily serve their manufacture.159

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.

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.160 159 Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995 160 Amended by No I of the Federal Act of 16 Dec. 1994, in force since 1 July 1995

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.

In criminal cases (Art. 81–82), publication of the judgment is governed by Article 68 of the Swiss Criminal Code161.162 The courts shall provide the IPI with full official copies of the final judgments free of charge.

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.

…165

Any person who performs an act referred to in Article 66 either wilfully or through negligence shall be required to pay damages to the 162 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 163 Inserted by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 164 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008 165 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1).

…167

An action for damages may only be brought after the patent has been granted; the defendant may, however, be held liable for loss or damage 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.168

…169

The Customs Administration is authorised to notify the proprietor of a patent that is valid in Switzerland if there is any suspicion that goods that infringe that patent may imminently be brought into or taken out of Swiss customs territory.188

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.

If the proprietor or a licensee of a patent that is valid in Switzerland entitled to institute proceedings has clear indications that goods which infringe that patent may imminently be brought into or taken out of Swiss customs territory, he may request the Customs Administration in writing to refuse the release of the goods.189

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.

The Customs Administration shall make the final decision on the application. It may charge a fee to cover the administrative costs.

If the Customs Administration, as a result of an application under

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.

Where justified by circumstances, it may withhold the goods for a maximum of ten additional working days.

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.

The samples are collected and delivered at the expense of the applicant.

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.

At the same time as notification is made in accordance with Artiand trade secrets 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 Article 86d paragraph 1.

The declarant, holder or owner may request to be present at the inspection in order to safeguard his manufacturing or trade secrets.

The Customs Administration may refuse to hand over samples on a reasoned request from the declarant, holder or owner.

When making an application under Article 86b paragraph 1, the applicant may submit a written request to the Customs Administration to destroy the goods.

If an application for destruction is made, the Customs Administration shall notify the declarant, holder or owner of the goods accordingly as part of the notification made under Article 86c paragraph 1.

The application for destruction does not result in the time limits for obtaining preliminary measures under Article 86c paragraphs² and 3 being extended.

The destruction of the goods requires the consent of the declarant, holder or owner.

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 paragraphs² and 3.

If the destruction of the goods proves to be unjustified, the applicant is exclusively liable for the resultant loss.

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.

The destruction of the goods is carried out at the expense of the applicant.

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.

If it is anticipated that withholding the goods may lead to a loss being incurred, the Customs Administration may make the withholding of the goods dependent on the applicant providing them with an 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.

The applicant shall be liable for any losses incurred from withholding the goods and from collecting the samples if preliminary measures are not ordered or prove to be unjustified.

The other provisions of this Act apply except where the Convention of 5 October 1973202 on the Grant of European Patents (European Patent Convention) or this Title provides otherwise.

The text of the European Patent Convention that binds Switzerland takes precedence over this Act.

Published European patent applications do not confer on the applicant the protection conferred by Article 64 of the European Patent Convention.

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.

The European patent application may be converted into a Swiss patent application:

1. 216 in the case provided for in Article 135 paragraph 1 letter a of the European Patent Convention;

2. in the case of failure to observe the time limit in accordance with Article 14 paragraph 2 of the European Patent Convention, where the original application was filed in Italian;

3. 217 … 2 …218

Where the request for conversion is filed in due form and sent in good time to the IPI, the patent application is deemed to have been filed on the date of filing of the European patent application.

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 IPI.

The rights attached to the European patent application remain valid.

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.

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.

Where, for one and the same invention, a Swiss patent and a European 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:

1. the opposition period against the European patent has expired without an opposition being filed; or

2. the European patent has been maintained in opposition proceedings by final decision.

Article 27 applies by analogy.

Article 27 applies by analogy.

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, 224 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 225 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 226 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 227 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 insofar as opposition to the patent may still be filed with the European Patent Office or intervention in opposition proceedings is still permitted, an appropriate time limit for the filing of opposition or for intervention in opposition proceedings.

Article 86 paragraph 2 applies by analogy.

Theother provisions of this Act apply except where the Patent Cooperation Treaty or this Title provide otherwise.

The text of the European Patent Convention that binds Switzerland takes precedence over this Act.

The Patent Cooperation Treaty, supplemented by this Act, applies to the procedure before the IPI acting as Receiving Office.

In addition to the fees prescribed by the Patent Cooperation Treaty, the international application shall give rise to the payment of a transmittal fee collected by the IPI.

Article 13 does not apply.

Where, in respect of one and the same invention, two patents having the same priority date have been granted to the same inventor 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- 241 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 242 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 243 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 244 Inserted by No I of the Federal Act of 17 Dec. 1976 (AS 1977 1997; BBl 1976 II 1). 245 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 June 1978 tional application is claimed for the patent resulting from the national

Article 27 applies accordingly.

The certificate is granted if, at the time of the application:

1. the product as such, a process for manufacturing it or a use of it is protected by a patent;

2. official authorisation has been granted for placing the product on the market in Switzerland as a medicinal product.

It is granted based on the first authorisation.

The proprietor of the patent has the right to the certificate.

Only one certificate shall be granted for each product.250

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.251 246 Inserted by No 1 of the Federal Act of 3 Feb. 1995, in force since 1 Sept. 1995 247 Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 248 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 249 Amended by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 250 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 251 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999

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.

The certificate grants the same rights as the patent and is subject to the same restrictions.

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.

It is valid for no more than five years.

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.

The application for the grant of a certificate must be filed:

1. within six months of the first authorisation to place the product on the market in Switzerland as a medicinal product;

2. within six months of the grant of the patent if this was granted later than the first authorisation.

In the event that the time limit is not met, the IPI shall refuse the

The certificate is subject to the payment of an application fee and renewal fees.

The renewal fees must be paid in advance in one single payment for the full term of the certificate.252

…253 252 Amended by No I of the Federal Act of 22 June 2007, in force since 1 July 2008

The certificate lapses where:

1. the owner surrenders it by a written declaration to the IPI;

2. the annual fees have not been paid in due time;

3. the authorisation to place the product on the market as a medicinal product is withdrawn.

If the authorisation is suspended, the certificate is also suspended. Suspension does not interrupt the term of the certificate.

The authority that grants authorisations shall notify the IPI of any withdrawal or suspension of the authorisation.

The certificate is null and void where:

1. 254 it was granted contrary to Article 140b, Article 140c paragraph 2, Article 146 paragraph 1 or Article 147 paragraph 1;

2. the patent lapses before its maximum term expires (Article 15);

3. the patent is declared null and void;

4. the patent is limited to the extent that the product for which the certificate was granted is no longer covered by the claims;

5. 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.

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.

The Federal Council shall lay down the procedure for the grant of certificates and for their entry in the Patent Register and the IPI’s publications.

It shall take account of the regulations of the European Community.

The Institute shall on application grant a supplementary protection certificate (certificate) for active ingredients or combination of active ingredients of plant protection products.

Articles 140a paragraph 2 to 140m apply by analogy.

The Federal Council shall take the necessary measures to implement this Act.

It may, in particular, enact regulations on the formation of the examining sections and opposition divisions, on the scope of their business and procedures as well as on time limits and fees.258

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.260 255 Inserted by No I of the Federal Act of 9 Oct. 1998, in force since 1 May 1999 256 Amended by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 257 Inserted by No I of the Federal Act of 17 Dec. 1976, in force since 1 Jan. 1978 258 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). 259 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). 260 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).

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.

However, the following are also governed by the previous law:

1. non-prejudicial disclosures at international exhibitions;

2. patentability, if the requirements are more favourable under the previous law.

Liability under civil law is regulated by the provisions in force at the time of the act concerned.

Article 75 and Article 77 paragraph 5 apply only to licence agreements that have been concluded or confirmed after the Amendment to this Act of 22 June 2007 comes into force.264

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 IPI shall refuse the application.

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 1998268 coming into force.

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.

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 IPI shall refuse the application.

Article 48 paragraphs 1, 2 and⁴ apply correspondingly for the time period between the lapse of the patent and the publication of the

No translation of the patent specifications under Article 113 paragraph 1270 is required for European patents which are not published in of 16 December 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, 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.

Articles 114271 and 116272 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 112273, or made public by the IPI or which have been submitted to the IPI under