SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
1.6 Further Protection After Lapse of the Maximum Term Upon an application by the owner of a Swiss national patent or a European patent with pro- tection for Switzerland, the IPI may grant a sup- plementary protection certificate (SPC) for the active ingredients or a combination of the active ingredients of medicinal products or plant pro- tection products (Articles 140a et seq, PatA). An SPC can only be granted on the basis of a valid patent and a granted marketing authorisation for the medicinal product. The period of protection for the SPC begins as soon as patent protection expires and is valid for a maximum period of five years. This term may be extended for a further six months if paediatric studies have been carried out and the results are reflected in the product information of the respective medicinal product (paediatric exten- sion). For situations where the patent owner is not eli- gible to apply for an ordinary SPC, which could be prolonged through a paediatric extension, the PatA also provides the possibility of a paediatric SPC that is directly linked to the patent and not to the ordinary SPC. 1.7 Third-Party Rights to Participate in Grant Proceedings Third parties currently do not have any right to participate in the grant proceedings for a Swiss national patent or an SPC – eg, by filing third- party observations. However, any person can file an opposition against a Swiss national patent once it is granted by the IPI. Due to the limited scope of the examination by the IPI, national opposition proceedings following grant of Swiss national patents are unattractive. In fact, to date, it appears that the opposition proceedings have never been made use of. The grant of an SPC
can be challenged by appeal if the appealing party can show a legal interest in the outcome of the proceedings. In proceedings before the EPO, third parties can file observations concerning the patentability of the invention (third-party observations) in order to try to prevent a patent from being granted. However, third parties cannot take part in the grant proceedings as a formal party. Any per- son may, however, file an opposition against a European patent once it is granted by the EPO. 1.8 Remedies Against Refusal to Grant an Intellectual Property Right Against a refusal to grant patent protection or an SPC by the IPI, an appeal can be filed with the Swiss Federal Administrative Court and thereaf- ter to the Swiss Federal Supreme Court. Once the partial revision of the PatA enters into force, the Federal Patent Court will be the new appeal instance against administrative grant decisions in patent matters. A decision of the EPO refusing to grant a Euro- pean patent may be appealed with the EPO’s Boards of Appeal. 1.9 Consequences of Failure to Pay Annual Fees A patent registered in the Swiss patent register is cancelled (and the patent protection terminates with effect ex nunc) if the annual renewal fees are not paid on time. Where the patent owner provides prima facie evidence of having been prevented, through no fault on their part, from observing a time limit, the IPI may grant, on request, the re-establishment of their rights (Article 47, PatA). Acceptance of the request has the effect of restoring the situa- tion that would have resulted from carrying out
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