¹ Inventions whose exploitation is contrary to human dignity or that disregard the integrity of living organisms or that are in any other way contrary to public policy or morality are not patentable. In particular, no patent may be granted for:

a.

processes for cloning human beings and the clones obtained thereby;

b.

processes for forming hybrid organisms by using human germ cells, human totipotent cells or human embryonic stem cells and the entities obtained thereby;

c.

processes of parthenogenesis by using human germinal material and the parthenogenetic entities obtained thereby;

d.

processes for modifying the germ line genetic identity of human beings and the germ line cells obtained thereby;

e.

unmodified human embryonic stem cells and stem cell lines;

f.

the use of human embryos for non-medical purposes;

g.

processes for modifying the genetic identity of animals which are likely to cause them suffering without being justified by overriding interests worthy of protection, and also animals resulting from such processes.

² Also excluded from patentability are:

a.

methods for treatment by surgery or therapy and diagnostic methods practised on the human or animal body;

b.

plant varieties and animal varieties or essentially biological processes for the production of plants or animals; however, subject to the reservation of paragraph 1, microbiological or other technical processes and the products obtained thereby as well as inventions that concern plants or animals are patentable provided that their application is not technically confined to a single plant or animal variety.

¹ Any person who is involved in administrative proceedings provided for in this Act and does not have a residence or principal place of business in Switzerland must designate an address for service in Switzerland unless international law or the competent foreign body permits the authority to serve documents directly in the state concerned.⁴⁰. An address for service in Switzerland is not required for:⁴¹

a.

filing a patent application for the purpose of being accorded a filing date;

b.

paying fees, filing translations and filing and handling requests after the grant of the patent, in so far as the requests do not give rise to any objections.⁴²

^1bis The IPI is entitled to declare to the competent foreign body that direct service is permitted in Switzerland in intellectual property matters provided Switzerland is granted reciprocal rights.⁴³

² The provisions concerning the practice of the profession of attorney remain reserved.

Patent applicants or proprietors who are Swiss nationals may rely on the provisions of the binding text for Switzerland of the Paris Convention for the Protection of Industrial Property of 20 March 1883,⁴⁹ where those provisions are more favourable than the provisions of this Act.

¹ 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 1883⁵¹ or the Agreement Establishing the World Trade Organization of 15 April 1994⁵², (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.⁵³

^1bis 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.⁵⁴

^1ter 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.⁵⁵

² 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.⁵⁶

³ …⁵⁷

¹ …⁵⁹

² 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.⁶⁰

³ 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.⁶¹

¹ Any person claiming a right of priority must file a declaration of priority and a priority document with the IPI.

² The right of priority is forfeited if the time limits and formal requirements laid down by the Ordinance are not complied with.

¹ 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.

² The filing on the basis of which priority is claimed is presumed to be the first filing (Article 17 para. 1 and 1^bis).⁶³

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 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.

¹ Where public interest so dictates, the Federal Council may expropriate all or part of the patent.

² 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 1930⁷⁷ apply by analogy.

¹ 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.

² 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.

^2bis The transfer of a patent application and of the patent by legal act is valid only if evidenced in writing.⁷⁸

³ 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.

⁴ 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.

¹ The patent applicant or the proprietor of the patent may grant third parties the right to use the invention (grant of licences).

² 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.

³ 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.

¹ 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.⁷⁹

² 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.

³ A patent has no effect with regard to vehicles which are only temporarily in Switzerland, nor to equipment attached to these vehicles.

¹ 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.⁹⁰

² …⁹¹

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

Any person who intends to use a patented biotechnological invention as an instrument or means for research is entitled to a non-exclusive licence.

For inventions concerning a diagnostic product or procedure for humans, a non-exclusive licence shall be granted to remedy a practice held to be anti-competitive in court or administrative proceedings.

¹ Any person may bring an action before the court to be granted a non-exclusive 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).

² 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.

³ The licence in accordance with paragraph 1 is limited to the production of the pharmaceutical product in the quantity that meets the requirements of the beneficiary country; the total quantity must be exported to the beneficiary country.

⁴ 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.

⁵ 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.

¹ 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 30 working days is regarded as reasonable.⁹⁷ Such efforts are not required in situations of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.

² The scope and term of the licence are limited to the purpose for which it has been granted.

³ The licence may only be transferred with that part of the enterprise which uses the licence. This also applies to sub-licences.

⁴ The licence is primarily granted for supplying the domestic market. Article 40d remains reserved.

⁵ 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.

⁶ The court shall decide on the grant and revocation of licences, on their scope and duration as well as on the remuneration payable. In 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.

¹ If the patent applicant or the proprietor of the patent fails to observe a time limit prescribed by legislation or a time limit set by the IPI, he may file a request for further processing with the IPI.¹⁰⁴

² He must file the request within two months of receiving notice from the IPI of failure to observe the time limit, and six months at the latest from the expiry of the said time limit.¹⁰⁵ He must also carry out in full, within these time limits, the omitted act, supplement where necessary the patent application and pay the fee for further processing.

³ Acceptance of the request for further processing has the effect of restoring the situation that would have resulted from carrying out the act in good time. Article 48 remains reserved.

⁴ Further processing is ruled out in the case of failure to observe:

a.

time limits that do not have to be observed vis-à-vis the IPI;

b.

time limits for filing a request for further processing (para. 2);

c.

time limits for filing a request for re-establishment of rights (Art. 47 para. 2);

d.

time limits for filing a patent application accompanied by a claim for the right of priority and for the declaration of priority (Art. 17 and 19);

e.¹⁰⁶

…

f.

the time limit for the modification of technical documents (Art. 58 para. 1);

g.¹⁰⁷

…

h.¹⁰⁸

time limits for applying for the grant of a supplementary protection certificate (Art. 140f para. 1, Art. 146 para. 2, and Art. 147 para. 3) or to extend its validity (Art. 140o para. 1) and to issue a paediatric supplementary protection certificate (Art. 140v para. 1);

i.

any other time limit laid down by ordinance where failure to comply with that time limit excludes further processing.

¹ 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.

² 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.

³ Re-establishment of rights shall be ruled out in respect of paragraph 2 above (time limit for the request for re-establishment of rights).

⁴ 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.

¹ 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:

a.

between the last day of the time limit stipulated for payment of a patent renewal fee (…¹¹¹) and the day on which a request for further processing (Art. 46a) or a request for re-establishment of rights (Art. 47) was filed;

b.

between the last day of the priority period (Art. 17 para. 1) and the day on which the patent application was filed.¹¹²

² This prior user right is governed by Article 35 paragraph 2.

³ 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.

⁴ 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.

¹ There is no obligation to be represented before the administrative authorities in proceedings under this Act.

² 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.

Article 13 of the Patent Attorney Act of 20 March 2009¹¹⁴ applies by analogy to representatives who are not registered in the Patent Attorney Register.

The abstract serves the sole purpose of providing technical information.

¹ 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.

² The technical documents may not be modified such that the subject-matter of the modified patent application extends beyond the content of the technical documents originally filed.

¹ The Institute shall publish patent applications:

a.

immediately after the expiry of a period of 18 months from the filing date or, if priority has been claimed, from the priority date;

b.

at the request of the applicant, before the expiry of the period specified in letter a.

² 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.

¹ If the subject-matter of the patent application does not fall within Articles 1, 1a, 1b and 2 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.¹³⁹

² 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.¹⁴⁰

³ …¹⁴¹

⁴ The Institute shall not examine whether the invention is new or whether it is obvious having regard to the state of the art.¹⁴²

⁵ In return for the payment of a fee, the applicant may:

a.

instruct the IPI to provide a report on the state of the art within 14 months of the filing date, or, if priority has been claimed, of the priority date; or

b.

request the IPI to arrange an international-type search within 6 months of the filing date of a first filing.¹⁴³

⁶ If no clarification has been carried out in accordance with paragraph 5, any person entitled to inspect the dossier in accordance with Article 65 may, in return for the payment of a fee, instruct the IPI to provide a report on the state of the art.¹⁴⁴

¹ 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.

² …¹⁴⁶

³ The Institute shall reject the patent application if:

a.

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

b.

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

¹ 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.

² Opposition may only be filed on the grounds that the subject-matter of the patent is not patentable under Articles 1a, 1b and 2.

³ 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.

⁴ The Federal Council shall regulate the particulars, in particular the procedure.

¹ The Institute shall grant the patent by registering it in the Patent Register.¹⁵¹

^1bis 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.¹⁵²

² Any modifications concerning the validity of the patent or the right to the patent must be entered in the Patent Register.

³ …¹⁵³

¹ As soon as the patent specification is ready for publication, the IPI shall issue a patent certificate.

² This consists of an attestation confirming the legal conditions for obtaining a patent have been met and a copy of the patent specification.

¹ 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.

² 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.

¹ The Federal Council may authorise the IPI to regulate electronic communication in accordance with the general provisions on the administration of federal justice.

² The dossier and the files may be maintained and stored in electronic form.

³ The Patent Register may be maintained in electronic form.

⁴ The Institute may make its data accessible, particularly online, to third parties; it may demand remuneration for this service.

⁵ 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.

In accordance with the following provisions, the following persons may be held liable under civil and criminal law:

a.

any person who uses a patented invention unlawfully; imitation is also deemed to constitute use;

b.¹⁶⁴

any person who refuses to notify the authority concerned of the origin and quantity of products in his possession which are unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial customers;

c.

any person who removes the patent mark from products or their packaging without authorisation from the proprietor of the patent or the licensee;

d.

any person who abets any of the said offences, participates in them, or aids or facilitates the performance of any of these acts.

¹ 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.

² 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.

¹ The parties' manufacturing or trade secrets must be safeguarded.

² 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.

¹ 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.¹⁶⁵

² 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.

³ 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.¹⁶⁶

¹ 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.

² In criminal cases (Art. 81-82), publication of the judgment is governed by Article 68 of the Swiss Criminal Code¹⁶⁷.¹⁶⁸

The courts shall provide the IPI with full official copies of the final judgments free of charge.

Any person who brings an action under Articles 72, 73, 74 or 81 and subsequently brings a further action against the same party for the same or a similar act on the basis of another patent must bear the court costs and the other party's costs for the new procedure if he does not provide prima facie evidence that in the prior action he was, through no fault on his part, unable to invoke the other patent.

¹ 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.

² …¹⁷¹

¹ Any person who performs an act referred to in Article 66 either wilfully or through negligence shall be required to pay damages to the injured party according to the provisions of the Code of Obligations¹⁷².

² …¹⁷³

³ 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.¹⁷⁴

⁴ …¹⁷⁵

Any person demonstrating an interest may bring an action to obtain a declaratory judgment on the existence or non-existence of a circumstance or legal relationship governed by this Act, in particular:

1.

that a particular patent is valid;

2.

that the defendant has performed an act referred to in Article 66;

3.

that the plaintiff has not performed any act referred to in Article 66;

4.¹⁷⁶

that a particular patent is not enforceable against the plaintiff by virtue of a legal provision;

5.

that with regard to two particular patents, the requirements of Article 36 for the grant of a licence are or are not fulfilled;

6.

that the plaintiff has made the invention, which is the subject-matter of a particular patent application or patent;

7.¹⁷⁷

that a particular patent, which violates the double patenting prohibition, has become invalid.

¹ Any person who holds an exclusive licence, irrespective of the registration of the licence in the Register, is entitled to bring an action as specified in Articles 72 or 73 independently, provided this is not expressly excluded by the licence agreement.

² Any licensee may join an action under Article 73 in order to claim their own loss or damages.

¹Any person requesting preliminary measures may, in particular, request that the court orders:

a.

measures to secure evidence, to preserve the existing state of affairs or to provisionally enforce claims for injunctive relief and remedy;

b.

a precise description to be made:

1.

of the allegedly unlawful processes used,

2.

of the allegedly unlawful products manufactured as well as the means used to manufacture them; or

c.

the seizure of these objects.

² If a party requests a description to be made, it must provide prima facie evidence that an existing claim has been infringed or an infringement is suspected.

³ If the opposing party claims that a manufacturing or trade secret is involved, the court shall take the necessary measures to safeguard it. It may exclude the applicant party from participating in the procedure for making the description.

⁴ The procedure for making the description, with or without seizure, shall be carried out by a member of the Federal Patent Court, who may call on the assistance of an expert if necessary. It shall be carried out, where necessary, in collaboration with the competent cantonal instances.

⁵ Before the applicant party is notified of the description, the opposing party shall be given the opportunity to comment.

The general provisions of the Swiss Criminal Code¹⁸⁹ apply unless this Act provides otherwise.

In the case of infringements within businesses committed by subordinates, agents or representatives, Articles 6 and 7 of the Federal Act of 22 March 1974¹⁹¹ on Administrative Criminal Law apply.

¹ The competent authorities for the prosecution and judgment of an offence are those of the place where the act was committed or of the place where the act occurred; where more than one place comes into consideration, or where several joint offenders are concerned, the competent authorities are those of the place where the investigation was first commenced.

² The competent authorities for the prosecution and judgment of instigators and accomplices are those which are competent for the prosecution and judgment of the main offender.

¹ The Federal Office for Customs and Border Security (FOCBS) is authorised to notify the proprietor of a patent that is valid in Switzerland if there is any suspicion that goods that infringe a patent valid in Switzerland are about to be brought into or taken out of the customs territory.

² In such cases, the FOCBS is authorised to detain the goods for three working days in order that the person entitled to file an application in accordance with Article 86b can do so.

¹ If the proprietor of the patent or the licensee that is entitled to institute proceedings has clear indications that goods which infringe a patent valid in Switzerland are about to be brought into or taken out of Swiss customs territory, the proprietor or licensee may request the FOCBS in writing to refuse the release of the goods.

² Applicants may at the same time apply in writing for the goods to be destroyed:

a.

in accordance with the ordinary procedure (Art. 86f-86k); or

b.

in accordance with the simplified procedure (Art. 86l) if the consignment is small.

³ In the application in accordance with paragraph 2, applicants may request that the goods be handed over to them so that they can destroy the goods themselves.

⁴ The application in accordance with paragraph 2 letter a must not result in the time limits for obtaining preliminary measures in accordance with Article 86c paragraphs 3 and 4 being extended.

⁵ The Federal Council shall determine what constitutes a small consignment, taking into account in particular the number of units contained in a consignment.

⁶ Applicants shall provide all the information available to them that the FOCBS requires in order to be able to decide on the application; this shall include a precise description of the goods.

⁷ The FOCBS shall make the final decision on the application. It may charge a fee to cover the administrative costs.

¹ If, as a result of an application for assistance in accordance with Article 86b paragraph 1, the FOCBS has grounds to suspect that the goods intended to be brought into or taken out of the Swiss customs territory infringe a patent valid in Switzerland, it shall:

a.

detain the goods; and

b.

inform the applicant and the declarant, holder or owner of the goods.

² If an application for the destruction of small consignments (Art. 86b para. 2 let. b) was submitted with the application for assistance in accordance with Article 86b paragraph 1, the procedure shall be governed exclusively by Article 86l.

³ The FOCBS shall detain the goods for a maximum of ten working days from the date on which the applicant received the notification in accordance with paragraph 1 letter b so that the applicant may obtain preliminary measures.

⁴ Where justified by the circumstances, it may detain the goods for a maximum of ten additional working days.

⁵ If the consignment is small, the FOCBS may transfer responsibility for the notification in accordance with paragraph 1 letter b and the further procedural steps to the IPI.

¹ While the goods are being withheld, the FOCBS¹⁹⁹ 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.

² The samples are collected and delivered at the expense of the applicant.

³ 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.

¹ At the same time as notification is made in accordance with Article 86c paragraph 1, the FOCBS 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.

² The declarant, holder or owner may request to be present at the inspection in order to safeguard his manufacturing or trade secrets.

³ The FOCBS may refuse to hand over samples on a reasoned request from the declarant, holder or owner.

¹ If it is anticipated that withholding the goods may lead to a loss being incurred, the FOCBS 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 FOCBS may request the applicant to provide appropriate security.

² 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.

¹ The FOCBS shall detain goods if the consignment is small and:

a.

if, as a result of an application for assistance in accordance with Article 86b paragraph 1, it has grounds to suspect that goods intended to be brought into or taken out of the Swiss customs territory infringe a patent valid in Switzerland; and

b.

an application for the destruction of small consignments (Art. 86b para. 2 let. b) has been submitted.

² It may transfer responsibility for conducting the further procedure to the IPI.

³ The competent authority shall provide the declarant, holder or owner of the goods with notification of the suspicion and of the detained goods and inform the declarant, holder or owner that the goods will be destroyed if he does not expressly object to the destruction within ten working days of receiving this notification.

⁴ If the declarant, holder or owner expressly objects to the destruction within the time limit specified in paragraph 3, the competent authority shall notify the applicant accordingly. The further procedure shall be governed mutatis mutandis by Articles 86c paragraphs 3 and 4, 86d, 86e and 86k.

⁵ If the declarant, holder or owner agrees to the destruction or does not give an opinion within the time limit referred to in paragraph 3, the competent authority shall destroy the goods at the applicant's expense no earlier than three months after the notification specified in paragraph 3 or hand them over to the applicant for destruction if the applicant has requested this in accordance with Article 86b paragraph 3. Claims for damages by the applicant against the declarant, holder or owner are excluded.

⁶ The competent authority shall provide the applicant with information about the quantity and type of the goods destroyed in accordance with paragraph 5 and about the senders, whether inside or outside Switzerland.

¹ This Title applies to European patent applications and European patents with effect in Switzerland.

² The other provisions of this Act apply except where the Convention of 5 October 1973²¹⁵ on the Grant of European Patents (European Patent Convention) or this Title provides otherwise.

³ The text of the European Patent Convention that binds Switzerland takes precedence over this Act.

¹ Published European patent applications do not confer on the applicant the protection conferred by Article 64 of the European Patent Convention.

² 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.

As soon as the mention of the grant of the European patent has been published in the European Patent Bulletin, the IPI shall record it in the Swiss Register of European Patents along with the particulars noted in the European Patent Register.

The Institute shall publish registrations made in the Swiss Register of European Patents.

¹ The European patent application may be converted into a Swiss patent application:

a.²²⁹

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

b.

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;

c.²³⁰

…

² …²³¹

¹ 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.

² 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.

³ The rights attached to the European patent application remain valid.

Where the language in which the original text of the European patent application is written is not an official Swiss language, the IPI shall allow the patent applicant a time limit within which to file a translation in an official Swiss language.

¹ 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.

² 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.

The Swiss Federal Institute of Intellectual Property shall receive requests for legal cooperation by the European Patent Office and transmit them to the competent authority.

¹ This Title applies to international applications under the Patent Cooperation Treaty of 19 June 1970²⁴⁶, for which the IPI acts as Receiving Office, Designated Office or Elected Office.²⁴⁷

² The other provisions of this Act apply except where the Patent Cooperation Treaty or this Title provide otherwise.

³ The text of the European Patent Convention that binds Switzerland takes precedence over this Act.

The Institute acts as Receiving Office under Article 2 of the Patent Cooperation Treaty in respect of international applications filed by Swiss nationals or persons having their principal place of business or domicile in Switzerland.

¹ The Patent Cooperation Treaty, supplemented by this Act, applies to the procedure before the IPI acting as Receiving Office.

² 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.

³ Article 13 does not apply.

The Institute acts as Designated Office and Elected Office under Article 2 of the Patent Cooperation Treaty in respect of international applications which seek protection for an invention in Switzerland, where such applications do not have the effect of a European patent application.

Within 30 months of the filing or priority date, the applicant must:

a.

provide written confirmation of the name of the inventor;

b.

provide information on the source (Art. 49a);

c.

pay the filing fee;

d.

file a translation in an official Swiss language, provided the international application is not made in such a language.

¹ 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 international application is claimed for the patent resulting from the national application.

² Article 27 applies accordingly.

¹ The Institute shall on application grant a supplementary protection certificate (certificate) for the active ingredients or combination of active ingredients of medicinal products. A certificate will only be issued if no paediatric supplementary protection certificate in accordance with Article 140t paragraph 1 is available.²⁶³

^1bis An active ingredient is a substance of chemical or biological origin contributing to the composition of a medicinal product which has a medicinal effect on the organism. An active ingredient composition is a combination of several substances, all of which have a medicinal effect on the organism.²⁶⁴

² Active ingredients or combinations of active ingredients are referred to in this Section as products.

¹ The certificate is granted if, at the time of the application:

a.

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

b.²⁶⁵

a medicinal product containing the product is authorised in Switzerland in accordance with Article 9 of the Therapeutic Products Act (TPA) of 15 December 2000.²⁶⁶

² It is granted based on the first authorisation.²⁶⁷

¹ The proprietor of the patent has the right to the certificate.

² Only one certificate shall be granted for each product.²⁶⁸

³ 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.²⁶⁹

¹ 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.

² The certificate grants the same rights as the patent and is subject to the same restrictions.

¹ 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 of the medicinal product containing the product in Switzerland, minus five years.²⁷⁰

² It is valid for no more than five years.

³ The Federal Council may specify that the authorisation of a medicinal product containing the product 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.²⁷¹

¹ The application for the grant of a certificate must be filed:

a.

within six months of the first authorisation of a medicinal product containing the product in Switzerland;

b.

within six months of the grant of the patent if this was granted later than the first authorisation.²⁷²

² In the event that the time limit is not met, the IPI shall refuse the application.

The Institute grants the certificate by entering it in the Patent Register.

¹ The certificate is subject to the payment of an application fee and renewal fees.

² The renewal fees must be paid in advance in one single payment for the full term of the certificate.²⁷³

³ …²⁷⁴

¹ The certificate lapses where:

a.

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

b.

the annual fees have not been paid in due time;

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c.²⁷⁵ all authorisations of medicinal products containing the product are recalled (Art. 16a TPA²⁷⁶).

² If all authorisations are suspended, the certificate is also suspended. Suspension does not interrupt the term of the certificate.²⁷⁷

³ The Swiss Agency for Therapeutic Products shall notify the IPI of any withdrawal or suspension of the authorisations.²⁷⁸

¹ The certificate is null and void where:

a.²⁷⁹

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

b.

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

c.

the patent is declared null and void;

d.

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

e.

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.

² 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.

¹ 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.

² It shall take account of the regulations of the European Union.²⁸⁰

Insofar as the provisions concerning the certificate do not contain any regulations, the provisions of the first, second, third and fifth Titles of this Act apply by analogy.

¹ The IPI shall extend the term of protection (Art. 140e) of certificates issued by six months if the authorisation (Art. 9 TPA²⁸²) of a medicinal product containing the product:

a.

contains confirmation that the information on the medicinal product reflects the results of all studies performed in accordance with the paediatric test concept (Art. 11 para. 2 let. a no 6 TPA) considered in the authorisation process; and

b.

was applied for no later than six months after the application for initial authorisation in the European Economic Area of a medicinal product containing the product in which the corresponding medicinal product information reflects the results of all studies performed in accordance with the paediatric test concept considered for the authorisation.

² A certificate's term of protection may only be extended once.

¹ An application to extend a certificate's term of protection may be made with the application for issuance of a certificate at the earliest and two years before the certificate expires at the latest.

² If the deadline is not respected, the IPI shall reject the application.

The IPI shall extend the term of protection of the certificate by entering this in the Patent Register.

A fee shall be paid to extend a certificate's term of protection.

¹ The IPI may revoke the extension of a certificate's term of protection if this was granted in contravention of Article 140n or if it subsequently contravenes Article 140n.

² Any person may lodge a request with the IPI for the extension of a term of protection to be revoked.

¹ The Federal Council shall regulate the procedure for extending the terms of protection of certificates, for registering them in the Patent Register and for publication by the IPI.

² It shall take into account European Union regulations.

¹ Upon application the IPI shall issue a paediatric supplementary protection certificate (paediatric certificate) for active ingredients or active ingredient compositions of medicinal products with a protection period of six months from the expiry of the longest term of the patent, provided the authorisation (Art. 9 TPA²⁸⁴) of a medicinal product containing the product:

a.

contains confirmation that the information on the medicinal product reflects the results of all studies performed in accordance with the paediatric test concept (Art. 11 para. 2 let. a no 6 TPA) considered in the authorisation process; and

b.

was applied for no later than six months after the application for initial authorisation in the European Economic Area of a medicinal product containing the product in which the corresponding medicinal product information reflects the results of all studies performed in accordance with the paediatric test concept considered for the authorisation.

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² A paediatric certificate shall only be issued if no supplementary protection certificate in accordance with Article 140a exists.

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³ Article 140b paragraph 1 applies mutatis mutandis.

⁴ The term of protection of a paediatric certificate may not be extended.

¹ The patent holder has a claim to the paediatric certificate.

² The paediatric certificate shall be issued once only for each product.

³ If however owing to the existence of different patents several patent holders submit an application for the same product, the paediatric certificate may be issued to each applicant if the addressee's consent is provided with the confirmation in accordance with Article 140t paragraph 1 letter a.

¹ The application for the grant of a paediatric certificate may be made two years before the end of the maximum term of the patent at the latest.

² If the deadline is not respected, the IPI shall reject the application.

A fee shall be paid for the paediatric certificate.

¹ The paediatric certificate is null and void when:

a.

it is issued in contravention of Article 140t or if it subsequently contravenes Article 140t;

b.

it is issued in contravention of Article 140u paragraph 2;

c.

the patent lapses before the end of its maximum term (Art. 15);

d.

the patent is found to be null and void;

e.

the patent is limited to such an extent that its claims no longer cover the product for which the paediatric certificate was granted;

f.

after the patent has lapsed, there are grounds which would have justified a declaration of nullity under letter d or a limitation under letter e.

² Any person may bring an action for the paediatric certificate to be declared null and void before the authority competent to declare the patent null and void.

Articles 140a paragraph 1^bis and 2, 140d, 140g, 140i, 140l paragraph 1 and 140m apply mutatis mutandis.