Patents of Invention

– Federal Act on Patents for Inventions of June 25, 1954, in force since January 1, 1956; last amendments in force since July 1, 2023.
– Ordinance on Patents for Inventions of October 19, 1977, in force since January 1, 1978; last amendments in force since January 1, 2022.

Membership in International Conventions

– Paris Convention for the Protection of Industrial Property, Stockholm Act.
– Convention Establishing the World Intellectual Property Organization (WIPO), since April 26, 1970.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since March 11, 1973.
– Strasbourg Agreement Concerning the International Patent Classification, since October 7, 1975.
– Convention on the Grant of European Patents of October 5, 1973, since October 7, 1977.
– Patent Cooperation Treaty (PCT), since January 24, 1978.
– Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, since August 19, 1981.
– WTO’s TRIPS Agreement, since July 1, 1995.
– Patent Law Treaty, since July 1, 2008.

Filing

Applicant(s): may be the inventor(s) or an assignee, i.e., a physical person, a company or a state. 

Protection for foreigners: the same as for Swiss nationals. 

Foreigners and nationals not living in the country: must appoint a local representative.

Naming of the inventor(s): is compulsory; if no naming is desired, the inventor(s) must sign a renunciation; the signature(s) must be notarized. 

Patentability conditions: an invention must be new, applicable in industry and not obvious. If the invention concerns a process, the effect of the patent extends to the immediate products of the process.

Exceptions to protection: (a) inventions contrary to public order or morality and exploitation of which would be offensive to human dignity or integrity of living organisms; (b) the human body as such at different stages of its development and constitution, including embryos, however a part of the human body can be patentable if it is technically prepared and if it has a technical utility; (c) surgical or therapeutic method of treatment of the human or animal body and method of diagnosis practiced on the human or animal body, this exclusion shall not apply to an invention consisting of a substance or composition for use in any such methods; (d) naturally occurring gene sequence or its parts, this exclusion shall not apply to a gene sequence derived from naturally occurring gene sequence or its parts when this sequence is technically prepared and its function is clearly disclosed; (e) plant and animal varieties or any essentially biological process for the production of plants or animals, this exclusion shall not apply to inventions related to plants and animals for which technical feasibility is not limited to one plant or animal variety.

Novelty: worldwide novelty is required.

Novelty grace period: a disclosure of the invention is not taken into consideration if it occurred not earlier than six months preceding the filing date of the priority date and if it results directly or indirectly of (a) an evident abuse in relation to the applicant or his legal predecessor; or (b) the fact that the applicant or his legal predecessor has displayed the invention at an official, or officially recognized, international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on November 22, 1928.

Priority: single, multiple or partial priority may be claimed.

Patents of addition: not provided for.

Confirmation patents: do not exist.

Secret patents: do not exist; however, the Swiss government as owner of a patent right may request indefinite deferring of grant and publication.

Inventions in the microbiological field: microorganisms as such and microbiological processes are patentable. If a microorganism cannot be described in such a way that a person skilled in the art can carry out the invention, a culture shall be deposited not later than the filing date with an institution recognized by the Swiss Federal Institute of Intellectual Property (IPI). The description shall include a reference to the deposit: designation of the institute, date of deposit, and serial number of the culture. These indications may be communicated within sixteen months after the filing or priority date. 

Inventions containing computer programs: (a) computer programs as such are not patentable; (b) processes in which a computer program is used are only patentable if the process includes other technical features which contribute to the invention and which interact with the computer program; a claim covering a “process for operating a device” where the device contains a computer program, as a functional feature, is also patentable; (c) devices which contain a computer program are patentable if other constructive features are present which interact with the computer program; and (d) the computer program must be described at a functional level which shows the interactions with the other technical features of the invention. A mere program listing is not acceptable, however it can be annexed to the description as a supplement. 

Territory: a Swiss patent covers the territories of Switzerland and Liechtenstein.

Filing requirements for an application (to be sent to resident agent):
1. Naming of the inventor(s), signed by the applicant or his agent, no legalization;
2. Application text, in German, French or Italian, comprising description of invention, claims and abstract, 3 copies (application text can be filed in English and a translation should be filed within sixteen months as of the filing date or the priority date);
3. Formal drawings (if any), on white paper, used area of each sheet must not exceed 26.2 x 17 cm, 3 copies;
4. Certified copy of the priority document(s) (if any).

For a PCT application, Switzerland being a designated or elected country (national phase):
1. If the application was not filed in German, French or Italian, a translation of the description of invention, claims and abstract into one of these languages;
2. Naming of the inventor(s) (signed by the applicant or his agent).

Time limit for entering the national phase: 30 months under both Chapters I and II.

Time limit for entering the regional phase in Europe: 31 months under PCT Chapters I and II.

Minimum requirements to obtain a filing date: name and address of applicant, one copy of description of invention and drawings (if any).  

Terms for filing the missing documents: are fixed by the Federal Institute, generally two to three months after filing date; a one-month further extension is normally possible. The priority document(s) and the naming of the inventor(s) have to be filed within sixteen months from the oldest priority date (extension possible). 

Electronic filing: available for filing national patent applications and international applications using ePCT as of June 19, 2017.

Electronic signatures: scanned copies of handwritten (wet) signed documents are accepted. The original signed documents are not required, however, the Federal Institute reserves the right to request the original signed document at a later date. The electronic signature is also accepted under strict conditions which make it possible to guarantee the authenticity of a document, a message or other electronic data and to ensure the identity of the signatory. It is based on a certification infrastructure managed by third party providers - certification services providers, that are recognized in Switzerland or abroad.

Validation of European patents: appointment of a national professional representative is not necessary. A national professional representative can be appointed anytime; there is no deadline. Translation of the European patent into the national language: since the entry into force of the London Agreement (May 1, 2008), it is no longer required to file a translation of European patents written in English (German and French being already national languages in Switzerland). Therefore, the time period provided in Art. 65(1) EPC for filing a translation is not relevant.

Examination

Formal examination: is normally effected within one to three years after the filing date and after a fee has been paid on invitation of the Federal Institute.

Examination as to novelty and non-obviousness: none for applications filed after September 1, 1995. For applications filed before September 1, 1995, the examination is carried out only on applications relating to time measurement or to textile finishing not being purely mechanical.

Accelerated examination: possible, subject to the payment of a fee.

Claims: independent and dependent claims covering methods, apparatus, products and uses are allowed in one application, as long as they are all related to a single inventive concept; Jepson type claims are usual. 

Description of invention: comprises (1) title; (2) description of the prior art; (3) enumeration of the drawings (if any); and (4) description of at least one embodiment of the invention. 

Abstract: max. 150 words. 

Alterations and amendments of description of invention, claims, abstract and drawings: are possible during examination, provided that no new matter is introduced. 

Divisions: possible; may be filed from the filing date up to the date of grant, upon request from the Office or on the applicant’s initiative. In both cases, the original filing and/or priority dates are retained. 

Objections of the Federal Institute of Intellectual Property: are reported in official letters; terms for filing replies and amendments expire normally two to four months after issuing; two extensions of two months are obtainable; a further extension is obtainable for legitimate reasons on payment of a fee. Non-response to the official letter causes rejection of the application. 

Continuation of the procedure in the case of missed deadlines: possible within six months from the expiry of the missed deadline upon filing a petition. The petition shall be filed within two months from the time when the applicant or patentee becomes aware of the failure to respect the missed deadline. 

Restoration: possible in the case of a missed deadline of more than six months but less than one year, if the applicant or the patentee can establish evidence of having, not by his fault, been prevented from respecting the term. The petition shall be filed within two months from the cessation of the conditions which impeded such action. 

Secrecy: applications are kept secret before and during examination procedure; the Federal Institute of Intellectual Property announces the end of the examination procedure. 

Provisional registration: is not possible. 

Interference proceedings: are not possible. 

Prior user disputes: must be settled after granting before a court. 

PCT application with Switzerland as a designated country: in order to enter the national phase, the applicant has to file, within thirty months of the priority date, if necessary, a translation of the description of invention, the original claims, the abstract, and, if applicable, the declaration accompanying modification of the claims, into one of the Swiss national languages (German, French or Italian), and to pay the application fee. Foreign applicants have to appoint a representative. 

PCT application with Switzerland as an elected country: if the applicant has filed a demand for international preliminary examination, Switzerland can be an elected country. In such a case, the time limit for entering the national phase is thirty months from the filing or priority date of the international application. 

European patent application, producing its effect in Switzerland: same as when filed nationally, except that the deadline for entering the regional phase in Europe is 31 months under PCT Chapters I and II. 

Transformation of a European patent application into a Swiss application: possible only in special cases according to EPC Art. 135(1)(a) and when the deadline according to EPC Art. 14(2) is missed for European patent applications filed in Italian. The request for conversion is to be filed within three months after the European application is refused or withdrawn. The application shall be deemed to have been filed at the same time as the original European application with the Federal Institute. Where necessary, a translation into German, French or Italian has to be filed.

Granting, Protection

Publication: the Letters Patent, comprising a printed copy of the abstract, claims, description and drawings, is issued. 

Delay of publication: up to six months delay as from the granting decision may be requested. 

Duration of protection: twenty years beginning from the filing date as long as annuities are paid within the legal terms.

Supplementary Protection Certificate for medicinal products and plant protection products: obtainable under certain conditions. The period of protection can be extended up to five years. 

Paediatric extension: possible by either (1) extending an already granted Supplementary Protection Certificate by six months; or (2) granting the new Paediatric Supplementary Protection Certificate, directly linked to the term of the patent and valid for six months.

Annuities: are due for applications and patents from the fourth year after filing and every year thereafter; due date: last day of the month of filing.

Annuity grace period: three months without fine, plus three months with a fine. For European patents: beginning with the year (counted from the filing date), following the publication of the granting decision in the European Patent Journal.

Advanced payment of annuities: possible up to two months.

Amendment of an issued patent: possible by limitation to a part of the original scope. 

Assignment: registration may be requested by filing an assignment document.

Licenses: registration may be requested.

Marking: not compulsory, but recommended. The mark should consist of the Swiss Cross and the number of the patent. 

Working: if a patent is not worked during three years from the granting date, any interested party may apply for a compulsory license. Should a license not meet the requirements of the Swiss market, a suit for annulment may be filed two years after the date of the first license. For owners of U.S. and German patents, working of their corresponding home patents is considered to be equivalent to working in Switzerland.

Infringement and penalties: the owner of a patent right may initiate civil and penal proceedings against any infringer (manufacturer, user, seller) and any third party assisting the said infringer. Proceedings must be started at the competent cantonal court and appeal can be taken to the Federal Supreme Court. Whoever wilfully commits an infringement or assists an infringer can be imprisoned and fined.

Enforcement: the new Code of Civil Procedures, which entered into force in January 2011, provides that each canton must have one single competent cantonal court for IP litigations. However, for certain patent litigations, namely validity and/or infringement of a patent and grant of a patent license, the new Federal Patent Court has the exclusive competence. The new Federal Patent Court is operating since January 2012.

Effect of a European patent: begins, if Switzerland is a designated country, with the date of mention of the grant in the European Patent Bulletin. The date to be taken into consideration for claims for damages shall be the date (a) on which the applicant informed the defendant, or (b) the European Patent Office published the European patent application.

Modification of Protection after Granting

Right of prior user: persons having used or made the necessary preparations for using an invention in Switzerland before the corresponding patent application has been filed or prior to the Convention date (if claimed) may continue to make use of the invention. Of course, only bona fide use of the invention is protected by law; the said preparations may consist in preparing the required drawings for manufacturing, etc.; no right of prior user can be created during the priority period. 

Opposition to granted patents: possible within nine months as of the publication of the date of grant in the Patent Register. The opposition can only be based on the fact that the subject matter of the patent is excluded from patentability (see under Section 3. “Exceptions to protection“). Patents may be attacked by nullification suits before the Federal Patent Court. For European patents designating Switzerland (see “EPC overview“).

Compulsory licenses: (1) see “Working” above; (2) the owner of a patent which cannot be used without infringement of a prior patent, has the right to a license, if his invention comprises a significant technical progress with respect to the prior patent; (3) if it is of public interest, any person whose request for license was rejected by the patentee without sufficient reasons, may apply for compulsory license; (4) under specific conditions, any person may apply for a non-exclusive license for the manufacturing of patented pharmaceutical products and for their export to a country where no manufacturing capacities exist or where the manufacturing capacities are insufficient to satisfy the need for these pharmaceutical products necessary to fight against public health problems and epidemics.

Expropriation: possible. 

Nullification: the Federal Patent Court may declare a patent invalid: (1) if it does not define a new and inventive solution applicable in industry; (2) if the invention is unpatentable (see under Section 3. “Exceptions to protection“); (3) if the invention is not disclosed in a manner allowing its implementation by one skilled in the art; (4) if the patent goes beyond the original disclosure; or (5) if the owner of the patent is neither the inventor nor his successor or assignee, or otherwise has no right to the patent.