Switzerland: Revised Swiss Patents Act – On Home Straight

On 15 March 2024, the Swiss Parliament passed the revised Swiss Patents Act (also "revPA"). Subject to a potential referendum, the revised Patents Act will likely enter into force in the course of the year 2026.

So far, the Swiss national patent granting procedure did not consider whether a particular invention was new and based on an inventive step, unlike the procedures in many other countries. The validity of a Swiss patent therefore remained uncertain. An applicant seeking a fully examined patent had to apply for a European Patent with protection also for Switzerland.

The revised Swiss Patents Act newly provides for:

• possibility to apply for a fully examined patent (Art. 58b(2) and 59(4) revPA). The low-cost and straightforward option to register a partially examined patent remains in place. The possibility to newly apply for a fully examined patent (including an examination as to novelty and inventive step) allows for a more secure alternative in line with international standards. Not only applicants may file a request for a full examination, but also third parties.
• option to submit patent relevant documentation not only in the Swiss official languages German, French, and Italian, but also in English in the patent granting procedure. This saves applicants translation costs.
• the obligation of the Swiss Federal Institute of Intellectual Property ("IPI") to publish a mandatory search report regarding the state of the art in the field of the invention for every patent application, irrespective of the chosen form of patent examination (i.e., partial or full examination) (Art. 57a revPA). This aims at fostering transparency as to potential grounds for patent invalidity.
• a shorter and streamlined appeal procedure. The prior opposition procedure before the IPI will be abolished. The Swiss Federal Patent Court ("FPC") (composed of legal and technical judges) will newly rule on any appeals against decisions rendered by the IPI instead of the Swiss Federal Administrative Court (composed of legal judges only) (Art. 59c(1) revPA; Art. 1(1) and 26(5) revised Swiss Patent Court Act).
• the (limited) right of third parties to appeal against decisions by the IPI. Third parties may appeal to argue lack of patentable subject matter in the sense of Art. 1a, 1b and 2 Patents Act (e.g., that a patent is contrary to public policy or morality), or if they have standing to appeal pursuant to the Federal Administrative Procedure Act (Art. 59c(2) and (3) revPA). The deadline to appeal for third parties is four months from the publication of the grant of the patent (Art. 59c(4) revPA). Appeals by third parties generally do not have suspensive effect (Art. 59c(5) revPA).

Overall, the revision of the Swiss Patents Act and thereby the modernization and harmonization of Swiss patent law are highly appreciated. These changes endorse Switzerland's standing as a hub for technology and innovation, in particular for small and medium enterprises (SME).