Applicants and third parties, such as associations, can appeal against decisions made by the IPI. In future, it will also be possible to base an appeal on the claim that a patented invention is not novel or that there is no inventive step. The appellate court must therefore be able to take decisions on complex technical issues. For this reason, the Federal Patent Court will now hear such appeals instead of the Federal Administrative Court. It already rules on civil disputes in patent matters and thus has the necessary expertise. Where provided for by law, the decisions of the Federal Patent Court may be referred to the Federal Supreme Court as the court of last instance.
Finally, the appeal procedure will be shortened by dispensing with the previous opposition procedure at the IPI. Instead, the options for appeals will be expanded. Please refer to the FAQ.
Third parties may also appeal against IPI decisions. However, the usual appeal period of 30 days is too short for this. Third parties usually only learn that a patent has been granted when it is published. They often need the advice of specialists to assess whether a patent is in conflict with their own patents. This is time-consuming. Therefore, third parties will in future have an appeal period of four months from the publication of the patent.
At the same time, certain organisations, such as ProSpecieRara, will have the right to submit non-commercial association appeals. The previous opposition procedure was of relevance to such organisations for the assertion of non-commercial interests. It was intended to enable them to have patents in socio-politically sensitive areas, such as biotechnology, reviewed. The right of appeal for associations will continue to take these interests into account.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"