Strengthening the Swiss patent

The patent examination procedure is to be modernised, that is, made more flexible and adapted to international standards. Tried-and-tested aspects of the procedure will remain but new options for applicants will be created.


More transparency and legal certainty with supplementary search

Applicants, especially start-ups and SMEs, will still be able to obtain a partially examined patent at a low cost, as in the past. However, the IPI will in future carry out a search for each patent application to establish the state of the art in the field of the invention. The results will be published and they will provide information as to whether the invention is eligible for patent protection. This will create more legal certainty – especially for people with little patent experience, who currently often do not know whether Swiss patents are valid or not. Applicants will thus be able to quickly evaluate whether they want to pursue their application or not. Additionally, the search will help third parties to better assess patents that are held against them.


Fully examined patent on request

Applicants will in future have the option of requesting a full examination. In this case, the IPI will also examine novelty and inventive step and only grant the patent if the invention is actually innovative and thus eligible for protection. This will significantly increase legal certainty for applicants and third parties.


The fully examined patent will be more difficult to challenge than a partially examined one and easier to enforce. It will also meet the standards of many other countries in Europe and worldwide. For SMEs and individual inventors in particular, it will offer an equivalent but less expensive alternative to the fully examined European patent, which they can apply for at the European Patent Office and extend to Switzerland. The direct route via the IPI will be particularly attractive for innovators who only want to protect their invention in Switzerland.


Patent documents in English

Throughout the world, English is the language of reference in everyday business as well as in research and technology and is thus often the language of choice for patent documents. The revised Patents Act will therefore permit patent applicants to file English documents in future. This will save them the costs of translation. It also means that there will be no translation errors and inaccuracies, which can jeopardise the legal certainty of patents.




What does the new ‘flexible’ patent examination mean?


Flexible means that applicants will in future be able to choose between a partially and a fully examined patent. If they request a full examination, the IPI will also examine novelty and inventive step and will only grant the patent if the invention meets all requirements. This patent will correspond to fully examined patents such as those granted under the European Patent Convention and in many other countries. If the applicant does not request a full examination, as before, the IPI will not examine novelty and inventive step within the scope of the substantive examination However, it will now carry out a state of the art search, which will allow the applicant and third parties to make their own assessment of their invention’s eligibility for protection.


What are the differences between partially and fully examined patents?


All granted patents are identical in terms of duration of protection, scope of protection and so on, regardless of whether they are fully examined or not. However, if patents are partially examined (using the current procedure), there is no examination to determine whether the invention is novel and based on an inventive step – and thus whether the requirements for a legally valid patent are fulfilled. This means that it is possible to patent inventions that are not eligible for protection. By contrast, the IPI will examine all patentability requirements, including novelty and inventive step, for fully examined patents. This will increase legal certainty for the applicant and for third parties.


What are the advantages of a fully examined patent?


In the case of a fully examined patent, the IPI will check all the legal requirements, including the necessary novelty and inventive step, before granting the patent. This will offer several advantages:


  • Legal certainty will increase for all parties involved because the IPI will examine all important aspects of the invention. This will prevent the granting of ‘junk patents’, that is, patents that do not fulfil the requirements for protection, such as novelty, but that can still be entered in the patent register if these requirements are not examined.
  • It will make it easier to enforce patents against third parties, because in the case of civil proceedings, there will already be a strong indication of the legal validity of a patent due to the full examination.
  • If a fully examined patent is licensed, the licensee’s risks will be lower.
  • For SMEs in particular, a fully examined patent will be an alternative to a fully examined European patent granted by the European Patent Office (EPO) with protection extended to Switzerland – a path that is often laborious and costly.
  • The fully examined patent will correspond to international standards and the patents of most member states of the European Patent Convention (EPC) as well as many states worldwide. In addition, it will meet the OECD requirements for IP rights that qualify for the patent box.

Where will it be possible to use the English language?


Today, anyone submitting technical documents in English must have them translated within 16 months. This is costly for applicants. Furthermore, there is a risk of translation errors, which may have a negative impact on the scope of protection of the patent. Therefore, Swiss patents filed in English will now also be published in English. Only the title of the invention and the abstract will need to be in an official Swiss language. Patent claims will not need to be translated.


Will English be a procedural language?


No. Although English will be accepted in the examination procedure in future, it will not become a procedural language. Procedural decisions and rulings will continue to be issued in an official Swiss language.


Appeal procedures before the Federal Patent Court will still be conducted in the (official) language of the contested decision. The instructing judge and the parties will now have the option of agreeing to conduct proceedings in English. However, the judgment and the orders directing proceedings will be required to be drafted in an official language in any case.