Date: 11 December 2020
Change to Swiss patent law is forthcoming
Previously, no examination of novelty and inventiveness was necessary for national patent applications in Switzerland. National patents were registered after an examination of the formal requirements and then were only examined in civil law proceedings through nullity proceedings.
The proposed change to Swiss patent law aims to introduce a full examination for Swiss patent applications. The previous regulation, which forbids the Swiss patent office, the Institute for Intellectual Property (IGE), to examine patent applications for novelty and inventive step, shall be deleted. It follows that the IGE would be obliged to first determine the state of the art for patent applications in order to assess whether the invention differs sufficiently from the known state of the art.
With the fully examined Swiss patent, inventors then receive a fully-fledged, national alternative to the likewise fully examined European patent. In terms of price, it will be positioned between a patent examined by the European Patent Office (EPO) and today's Swiss patent.
It is particularly interesting that, in addition to the fully examined patent, a so-called 'Utility Model' is now to be introduced in the same way as they are present in Germany. So far, Swiss law does not recognize any property right explicitly named in this way. Utility models, are often referred to as a “small patent” or “petty patent” abroad. They are registered in a quick and uncomplicated procedure after only a formal examination and without material examination of the content and patentability. The streamlined utility model procedure is, however, not applicable for inventions in the fields of biotechnology, pharmacy and chemistry or for inventions that concern processes or methods. This follows the German legal structure for utility models. Unlike patents, utility models only offer protection for a maximum of 10 instead of 20 years.
See here more information about the German utility model: An overview of the German utility model
In addition to the fully examined patent, inventors thus now also have a protective right comparable to the previous partially examined Swiss patent. The cost of a utility model is likely to be in the order of magnitude of a current Swiss patent or slightly less.
The so-called “consultation” (“Vernehmlassung”) of the amendment to the Swiss Patent Act ends on February 1, 2021. During this phase, the legislative proposal has been published and sent to interested parties in order to enable them to contribute technical expertise and make a statement.
It is not yet clear whether and when the law will finally enter into force.