In late 2022, the Swiss Federal Council published a draft amendment to the Swiss Patent Act. The draft proposes major changes to Swiss patent law.

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Switzerland is currently modernizing its patent laws. The main objective of this revision is to bring the country's patent law in line with international standards and to make the Swiss patent system more attractive to smes and innovators.

As reported in Swiss Intellectual Property News, the Federal Council published the first draft of the revised Patent Act for comment in October 2020. While the direction of the reforms has been generally recognized, several aspects have been criticized. Taking into account the results of the consultation, a draft revision was created, which the Federal Council published together with its communication on 16 November 2022. It will now be considered by Parliament. The Preparatory Committee of the Council of State discussed the draft at its meeting on January 31, 2023, and heard the opinions of experts from various organizations. A follow-up meeting will be held for further discussion.

The draft contains significant changes to Swiss patent law and differs significantly from the first draft. Compared to the current law, it has several major changes:

Full review as requested

Under current law, the Swiss Federal Intellectual Property Office (IPI) does not review core patentability requirements such as novelty and creativity. As a result, there is often legal uncertainty about the validity and enforceability of Swiss patents once they have been granted.

The draft introduces the possibility of requiring a full examination of a patent application, thus offering applicants an alternative to a fully examined European patent. However, not only an applicant can request a full review, anyone can request one. The draft does not address whether third parties can also comment on the patentability of an invention. If no request for a full review is made, the Intellectual Property Office will, in accordance with existing law, conduct only a limited substantive review without assessing whether the invention sought for protection is novel and creative.

The proposal in the first draft to introduce utility models as an alternative to fully vetted patents has been dropped in the draft.

Mandatory search report

The draft stipulates that each patent application must provide a search report on the state of prior art. The search report aims to improve legal certainty and better assess whether an application meets the patentability requirements of novelty and creativity. The search report will be published with the application or as soon as possible after the application. Requests for a full review must be made within 6 months of publication of the search report.

Proceedings before the Federal Patent Court

Under the current law, lawsuits against IPI decisions in patent matters are filed before the Federal Administrative Court. According to the draft, such litigation will now be the responsibility of the Federal Patent Court, which has the necessary resources and expertise needed to deal with technical issues.

In addition, under current law, interested parties can file post-grant objections to Swiss patents with IPI. However, since such objections cannot be justified on the grounds that the patent being challenged lacks novelty or creativity, no objection procedure has been carried out since its introduction in 2008.

The draft proposed abolishing the objection procedure. Instead, under certain conditions, third parties can file lawsuits against IPI's decision to grant a patent. In this regard, the following elements are worth mentioning in particular:

The scope of the proceedings will be limited to the scope of the IPI review. Therefore, litigating a patent grant decision on the grounds of lack of novelty or creativity requires a request for full review by the interested party to the IPI in due course. However, such a request need not have been made by the litigant.

Proceedings have the effect of suspension by default. Therefore, unless the Federal Patent Court reverses this stay, the disputed patent is unenforceable in the proceedings. This puts the patentee at a great disadvantage. Currently, challenged Swiss patents - just like challenged European patents - can be enforced in Switzerland.

The period of validity for third party action is 4 months. This is quite a short period of time compared to the nine-month period for filing an objection under current Swiss law or with the European Patent Office (EPO).

Under current Swiss law and the relevant provisions of the EPO, anyone can object to an granted patent. By contrast, filing a lawsuit against IPI's decision to grant a patent is not a popular act. Instead, the right of action requires that third party litigants must be specifically affected by the granting decision and have interests worth protecting. For example, if a third party brings a lawsuit against IPI's trademark registration decision and claims that the mark should not be registered on grounds of absolute dismissal, the same standard applies to patent litigation. In such cases, the Federal Administrative Court has held in the past that the mere existence of a competitive relationship between the litigant and the trademark owner is not sufficient to entitle the litigant to bring an action. If the Federal patent Court were to apply the same stringent standards, the possibility of third-party litigation against IPI's decision to grant a patent would be considerably limited. It seems inconsistent that the circle of people who have the right to bring a lawsuit is even smaller than the range of people who have the right to apply for