SWITZERLAND Law and Practice Contributed by: Lara Dorigo and Alexandra Bühlmann, Pestalozzi
• the invention relates to naturally occurring sequences or partial sequences of genes; or • the invention’s exploitation is contrary to human dignity or disregards the integrity of living organisms, or is in any other way con- trary to public policy or morality according to Article 2 of the PatA. European patents The EPC allows for more grounds for opposi- tion. In addition to similar opposition grounds allowed under Swiss law, a third party may also claim that: • the invention is not new; • the invention does not involve an inventive step; • the invention is not susceptible to industrial application; • the invention is not disclosed clearly and completely enough for a person skilled in the art to carry it out; or • the patent’s subject-matter extends beyond the content of the application as filed. PatA revision After the PatA revision, besides the above- mentioned opposition grounds, the grounds of appeal in national opposition proceedings for fully examined patents will be expanded to include an examination for novelty and inventive step. Another important change concerns the aboli- tion of the opposition procedure itself. Instead, third parties will be provided with the opportunity to directly appeal grant decisions to the Federal Patent Court. Up until now, the Federal Admin- istrative Court was the appeal instance for all federal administrative matters; eg, opposition decisions of the IPI.
Another notable change, which is being pur- sued in a separate revision process, concerns patents in the area of plant breeding. While plant varieties cannot be patented, certain breeding methods and specific traits can be. According to Swiss law, all protected varieties can be freely used for breeding. If a patented trait is present in a new variety, however, breeders must obtain permission, typically through a licence, before marketing it. Currently, it is challenging to identify whether a variety is subject to a patent, as patented traits are not labelled on seeds or easily found in pat- ent searches. To address this issue, a clearing- house solution has been proposed. Breeders would submit details of their intended varie - ties to the IPI, which would make this informa- tion accessible to patent holders. Patent hold- ers have 90 days to notify the clearinghouse if their patents apply to the notified variety, and the breeder is informed with the relevant patent details. This would enable breeders to assess the patent’s impact and decide whether to pro- ceed or switch to a non-patented variety. If the breeders choose a patented variety, they must negotiate a licensing agreement. This revision project is highly controversial for several legal and practical reasons. It is currently unclear whether, and in what form, it will be proposed to parliament. Civil Proceedings Third parties, with a proven interest, may also initiate civil proceedings in order to claim the invalidity or partial invalidity of a Swiss national patent or of the Swiss part of a European patent if the invention is excluded from patentability, is obvious, not novel or not disclosed in a way that a person skilled in the art could carry it out, or if matter was added after the filing date (Articles 26 et seq, PatA).
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