Report on the Swiss public consultation held between 4 April and 20 May 2022 on various stakeholders proposals

1. Overview

The consultation period on the SPLH has come to an end and we can therefore begin to draw some preliminary conclusions based on the received comments. In quantitative terms, the participation was moderate: between 4 April and 20 May 2022, 11 submissions were submitted to the Swiss Federal Institute of Intellectual Property (IPI), of which 5 were from Stakeholder Associations, 4 from Corporations and 2 from Patent attorneys/firms. Among the possible reasons for this rather shy participation, we must certainly consider the complexity of the topics that are being examined, the abundance of documentation produced (almost 150 pages between the Common Consultation Document and the proposals of IC3, FICPI and AIPPI) and the limited time available to express an opinion on them.


In qualitative terms, on the other hand, there is a generally decent degree of detail and depth to the issues raised, particularly on the introduction of a harmonized grace period (GP) and on the matter of prior user rights (PURs). Furthermore, the submissions received come from two major associations of IP professionals (INGRES and VIPS) and from Switzerland’s research-based pharmaceutical industry association (Interpharma), the pharma, chemical and life science industries association (Science industries) and the leading association for both SMEs and major corporations in the Swiss technology industry (Swissmem). These participants therefore represent a large part of Switzerland's IP professionals and from Swiss innovative industries, which make the greatest use of the international patent system.


2. Observed trends

SPLH is important
As a general observation, the majority of the participants consider SPLH to be important or even very important, while only one considers harmonization to be merely ‘slightly important’. With regard to the three developed packages, participants expressed mainly negative or even very negative opinions on all three of them. The IT3 package, however, received less criticism and was overall preferred by the participants due in particular to the postulated mandatory requirement, within the GP-matter, of a statement identifying the Pre-Filing Disclosures (PFD) of the applicant which are to be graced.


The Grace Period as a Stumbling Block
Concerning the question as to whether to introduce a GP, a very slight tendency in favour of a GP of the ‘safety-net’ type can be observed. However, this tendency is practically balanced by an almost equal number of preferences for a GP under the condition that the GP is internationally harmonized itself, as well as an almost equal number of negative views on the introduction of a harmonized GP regardless of its definition. On the other hand, none of the participants was in favour of a GP regardless of its definition. In general, there is some scepticism due to the expected negative implications of a GP on legal certainty and because of its novelty for the European and Swiss patent law systems.


Regarding the concrete proposals made by IT3, FICPI and AIPPI, the general opinion tends to be negative or even very negative for all three solutions. The solution with the least disagreement is that of IT3. With regard to this proposal in particular, participants find the trade-offs for the introduction of a GP to be totally insufficient. Furthermore, according to the participants, a GP must not exceed 12 months and a PFD must be filed as soon as possible and published at the latest at the time of the publication of the patent application.


Prior Users’ Rights and Conflicting Applications
Concerning PURs, the participants expressed mostly positive opinions on all three packages. However, participants want the effect of PURs to extend beyond the national borders where they originated. With regard to Conflicting Applications, the evaluation of the three proposals also appears to be slightly positive overall, with a slender preference of the participants for the AIPPI package.


3. IPI’s Conclusions

The consultation gathered the views of major associations of intellectual property professionals as well as of the main innovative industries, which make use of the international patent system and are of high economic and political importance. Based on the submissions received, it is clear that SPLH is unanimously desired, but not at any price. There is still a lot of work to be done to find a workable and accepted solution for Swiss stakeholders. In particular, there is still strong opposition to the very principle of introducing a GP. Even for those participants who said they were willing to consider such a solution, there is still a long way to go regarding the introduction of a GP. Participants have been very clear: any GP must be conceived as a safety net, harmonized at international level and offering adequate compensation to Switzerland and European countries. The proposals of IT3, FICPI and AIPPI are far away from such a solution. Therefore, it appears doubtful that they are a suitable and promising part of departure for further work.


The IPI will provide stakeholders with more information on the development of this dossier, so that they become more familiar with it and that participation increases in future consultations.


4. Next steps

The next Plenary Meeting of Group B+ will be held on 21 September 2022. At this meeting, a discussion will take place as to whether and how to follow up on the SPLH project. In this context, the outcome of the public consultation in Switzerland, but also in sixteen other European countries, will be taken into account. Afterwards, i.e. towards the end of September 2022, our Institute will inform the stakeholders of the outcome of this meeting and the following steps.