SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
the examination of the novelty and obviousness requirements takes time. The European patent grant procedure generally takes about three to five years from the date the application is filed, but in certain cases it can last considerably long- er depending on the complexity of the file. Following the revision of the PatA, the dura- tion of a patent examination is likely to become longer in Switzerland, as the preparation of a state-of-the-art search report by the IPI will be mandatory prior to each patent application and in the case of a full examination, the IPI will also analyse novelty and inventive step. 1.4 Term of Each Intellectual Property Right For both Swiss national patents and European patents with protection for Switzerland, the term of protection is 20 years from the filing date of the patent application (Article 14, PatA). Inventions that qualify as trade secrets are pro- tected by law as long as the invention meets the conditions for protection – ie, as long as the invention remains confidential and the inventor has an interest in its confidentiality. 1.5 Rights and Obligations of Owners of Intellectual Property Rights Obligations In order to maintain both Swiss national patents and Swiss parts of European patents, once granted, the patent owner’s primary obligation is to timely pay the registration and annual renewal fees. The amount of the renewal fees is progres- sive based on the years of protection. Rights Both Swiss national patents and European pat- ents with protection for Switzerland, confer on their owners the right to prohibit others from
commercially using the invention (Article 8, PatA). It is the responsibility of the patent owner to enforce their exclusivity rights. Possible civil legal actions include: • an action for permanent injunction or remedy of the unlawful situation (Article 72, PatA); • an action for monetary relief, including damages such as lost profits, accounts of the infringer’s profits and surrender of the unjust enrichment in the form of a reasonable licence fee (Article 73, PatA); and • an action for declaratory judgment on the existence or non-existence of a circumstance or right governed by the PatA (Article 74, PatA). Besides the initiation of civil actions, the pat- ent owner may file a complaint in order to start criminal proceedings against the infringer of their patent rights (Articles 81 et seq, PatA). The PatA also provides for custom measures (Articles 86a et seq, PatA). If the patent owner has clear indi- cations that goods infringing their patent may imminently be imported into or exported out of Swiss customs territory, they may request the Customs Administration to refuse the release of the goods. The Customs Administration may withhold the goods for a maximum period of ten working days, so that the applicant may obtain preliminary measures. Inventions that are only protected as trade secrets enjoy protection either under Swiss unfair competition law (Article 6, Act Against Unfair Competition), under criminal law (Article 162, Penal Code) and/or by contractual means. Unfair competition law provides for civil injunc- tions, remedies and monetary relief actions as well as for criminal sanctions.
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