Changes in Swiss Patent Law, Status: 1 July 2008


The changes aim to adapt the Swiss Patents Act to the revised EPC 2000 (European Patent Convention) as in force since 13 December 2007, to the PLT (Patent Law Treaty) and to the London Agreement on the translation requirements of Art. 65 EPC 2000 as in force since 1 May 2008.

The most important changes are briefly summarized in the following. For any questions you may have, please contact us.

Already in force since 13 December 2007 are

  • The acceptance of a first filing in a WTO/TRIPS member state with priority for a Swiss subsequent filing (Art. 17(1)).
  • The harmonization of the Swiss Patents Act (new Art. 110a) with the limitation and revocation proceedings of Art. 105a ff. EPC 2000.
  • The precedent of a pending European opposition, limitation or revocation procedure to the national part revocation procedure (Art. 127), as well as the possibility for staying an invalidity or infringement action during this time (Art. 128).

Newly in force since 1 July 2008 are

  • The publication of Swiss patent applications 18 months after filing (Art. 58a).
  • The abolishment of the pre-examination procedure (old Art. 87 ff.).
  • The extension of the term for entry into national phase according to Chapter I PCT to 30 months (Art. 138).
  • The introduction of a research and experimental use exception, as well as a „Bolar-type“ exemption of acts for obtaining a marketing authorisation (Art. 9).
  • The introduction of a national opposition proceeding (within 9 months from grant) for subject-matter excluded from patentability according to Art. 1a, 1b and 2 (Art. 59).
  • The replacement of the „prior claim approach“ by the „whole content approach“ for novelty in view of prior rights (Art. 7(3)).
  • The harmonization of the Swiss Patents Act with the Directive 98/44/EC of the European Community on the legal protection of biotechnological inventions. Still excluded from patentability are naturally occurring gene sequences as such (Art. 1b).
  • The duty to declare the source of the genetic resource or the traditional knowledge, to which the inventor or applicant had access (Art. 49a).

Changes still to come:

  • Creating a federal patents court with sole responsibility on first instance for all patent matters in Switzerland.
  • Creating a Patent Attorneys Act an introducing a register for professional representatives in Switzerland.