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Patent law reform - Patent Attorney Act and Patent Court Act

  

Background

The first formal step towards a reform of the Patent Act was given by a motion by Council of State Member Helen Leumann-Würsch on 10 June 1998 (98.3243 – Revision of the Swiss Patents for Inventions, in German or French). She requested the Federal Council to adapt the Patent Act in accordance with European Parliament’s guidelines 98/44/EC and advice of 6 July 1998 concerning the legal protection of biotechnological inventions (AB1. EG No. L 213 of 30 July 1998, p.13). Further points concerning the reform were also added, which allowed the thematically-limited partial revision to grow into a broad reform of patent law.  Following the conclusion of the second consultation, the Federal Council decided to phase in individual aspects of the reform under the following schedule by taking into consideration the various priorities and implications:

  • Stage one: Approval of the revised European Patent Convention and the London Agreement
  • Stage two: Revision of the Patent Act (with emphasis on protection of biotechnological inventions) and approval of the Patent Law Treaty
  • Stage three: Patent Attorney Act and Patent Court Act

During the second consultation on the revision of the Patent Act, the idea of a Patent Attorney and Patent Court Act were presented for discussion. Despite its positive acceptance, a further consultation on the drafted bill was necessary.

  

Contents

  

Patent Attorney Act

Under the new Patent Attorney Act, only persons with proven expertise are allowed to carry the professional title of patent attorney. Before taking up this occupation, they must register themselves in a patent attorney register and prove that they possess the required professional qualifications. As previously, the act of advising and representing a client in patent matters continues to be open to all people. However, the proposed solution makes it possible for the public to choose a professional and competent service provider. It serves to protect the non-disclosure concerns of the person being advised by imposing an obligation of secrecy on the patent attorney; it also creates a better position for patent attorneys who also want to legally practise within the European Community.

  

Patent Court Act

With the Patent Court Act, a national special court will be created which alone will be responsible for resolving disputes regarding patent law infringements and legalities. As a lower court of the Federal Supreme Court, it ensures the necessary specialist knowledge and effective legal protection for inventions. The court is comprised of both legal as well as technically-trained judges. In this way, patent law will be materially based as being at the cutting edge between technology and law. As the infrastructure of the Federal Administrative Court will be made available to the Federal patent court, synergies will be built and costs kept low. If it is necessary to refer the dispute, the court can also sit elsewhere.  Procedural law essentially follows the Swiss Civil Procedure Code. Special provisions will be made for the special patent law procedural conditions.

  

Chronology

01.01.2012The Federal Patent Court took up its duties today. The seat of the Federal Patent Court is St. Gallen. In autumn 2012, the Federal Patent Court will move into the building of the Federal Administrative Court in St. Gallen. Until then, the Federal Patent Court is provisionally operating at St. Leonhardstrasse 49, 9000 St. Gallen.
28.09.2011The United Federal Assembly elects a further five part-time judges for the Federal Patent Court. The election of additional judges from the field of chemistry followed a hearing of the President of the Federal Patent Court before the Judicial Committee. In view of the expected number of legal proceedings in the field of pharmaceuticals/chemistry, the pool of four chemist judges, already elected in June 2010, is under-resourced for this specialist field.
11.05.2011The Federal Council resolved today to bring the Patent Attorney Act and the Patent Attorney Ordinance into force as of 1 July 2011.  With this, the professional title of patent attorney will be protected in Switzerland. The Federal Council further resolved to bring the Federal Patent Court Act fully into force as of 1 January 2012. The new Federal Patent Court will take up its duties at the beginning of 2012 and as a national special court, will contribute to a qualitatively high case-law and thus legal certainty. See press release (pdf 45 KB)
18.01.2011Since 1 March 2010, the organisational and institutional clauses of the Patent Court Act have been in force. They allow the judges, elected on 16 June 2010, to do the preparatory work necessary for bringing the Federal Patent Court into service. The newly-created Federal Patent Court held its first plenary session on 18 January 2011 (see Federal Patent Court media release, pdf 35 KB). The Swiss Federal Institute of Intellectual Property (IPI) intends therefore to bring the Patent Court Act into force on 1 January 2012. This scheduling is, however, subject to the approval of the Federal Council.
05.10.2010Following the treatment and clarifications of the results of the consultation (German, French or Italian) on the ordinance of the Patent Attorney Act, the Swiss Federal Institute of Intellectual Property (IPI) now intends to bring the Patent Attorney Act into force on 1 July 2011. This scheduling is, however, subject to the approval of the Federal Council.
16.06.2010The United Federal Assembly today undertook the election of judges at the Federal Patent Court. Among the elected part-time judges are eleven legally-trained people and 20 technically-trained people i.e. with specialisation in the fields of chemistry, biotechnology, mechanical engineering, physics and electrical engineering.
19.03.2010Parliament decided to establish a so-called function allowance for the Federal Patent Court judges and approved a corresponding amendment to the Judge Ordinance (issue 10.400).
26.02.2010The consultation for interested parties (German, French or Italian) on the draft ordinance of the Patent Attorney Act is opened. Opinions can be submitted until 31 May 2010.
28.01.2010The vacancies for the positions of judges at the Federal Patent Court have been advertised (in German / French / Italian). Applications should be sent to the Secretariat of the Judicial Committee, Parlamentsgebäude, 3003 Bern by 1 April 2010.
07.12.2009The Federal Council decides to put the institutional and organisational provisions for the new Patent Court Act into force on 1 March 2010. See press release (in German, French, Italian, pdf 42 KB).
20.03.2009Parliament accepts the Patent Attorney Act and Patent Court Act in the final vote. For parliamentary debates, see the database of parliamentary proceedings (issue 07.098 in German or French and issue 07.099 in German or French).
07.12.2007The Federal Council adopts the dispatch on the Patent Attorney Act and Patent Court Act. See press release (in German, French, Italian).
29.11.2006The Federal Council commissions the Federal Department of Justice and Police to carry out a consultation on the draft of a Patent Attorney Act and a Patent Court Act. The consultation starts on 1 December 2006 and lasts until 30 March 2007. See press release (in German, French, Italian)
  
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