SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
the act in good time. However, due to the quite strict practice on the no-fault requirement, Arti- cle 47 of the PatA is often not applicable. Alternatively, the patent owner may file a request for further processing with the IPI (Article 46a, PatA). The request must be made within two months after receiving notification of the missed time limit or within six months after the time limit has expired. Within this time, the action that has been omitted must be executed. If the request for further processing is approved, the situation that would have resulted from executing the act on time will be restored. 1.10 Post-Grant Proceedings Available to Owners of Intellectual Property Rights Once the patent has been granted (and the opposition period has expired), the patent owner may file a request with the IPI for a declaration of partial surrender of a Swiss national patent or the Swiss part of a European patent in order to: • surrender a patent claim; • limit an independent claim by combining one or more patent claims, which are dependent on it; or • limit an independent claim in some other way – in such cases, the limited claim must refer to the same invention and define an embodi- ment that is included in the specification of the published patent and in the version of the patent application that determined the date of filing. The partial surrender may not be used to file new patent claims or to make up for something else that was overlooked in the granting procedure. On the occasion of registration of a partial sur- render, the patent owner may, within a three- month period, file an application for the estab-
lishment of one or more new patents to cover the dropped patent claims; such new patents are given the filing date of the original patent.
2. Initiating a Lawsuit 2.1 Actions Available Against Infringement
Under Swiss law, civil legal actions include: • actions for permanent injunction or remedy of the unlawful situation (which may also be requested as preliminary measures);
• actions for monetary relief; and • declaratory judgment actions.
Moreover, the patent owner may also initi- ate criminal proceedings or apply for customs measures. See 1.5 Rights and Obligations of Owners of Intellectual Property Rights for more detail. 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property Opposition Proceedings Within nine months of publication, any third par- ty, without the need to demonstrate a proven interest, may file an opposition against a Swiss national patent granted by the IPI or against a European patent granted by the EPO. Swiss national patents Grounds for opposition against a Swiss national patent are rather limited. The opposing party may claim that the patent contains inventions that are excluded from patentability because: • the invention relates to the human body or its elements;
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