Protection of Inventions by Patent in Switzerland
A patent is an exclusive right granted by the State to the inventor of a new, inventive and industrially applicable invention. In Switzerland, patent protection is governed by the Federal Act on Patents for Inventions (PatA) of 25 June 1954. The Federal Institute of Intellectual Property (IPI) is the Swiss authority competent for the examination and grant of Swiss patents. PBM Avocats advises inventors and companies in Geneva and Lausanne.
Patentability Conditions in Switzerland
To be patentable, an invention must satisfy three cumulative conditions (art. 1 PatA):
- Novelty: the invention must not have been disclosed to the public before the filing date (disclosure by the inventor, publications, prior patents). A grace period of 6 months exists for certain disclosures made by the inventor themselves
- Inventive step: the invention must not be obvious to a person skilled in the relevant field from the state of the art (non-obviousness)
- Industrial applicability: the invention must be capable of being made or used in any type of industry
Filing Routes: Swiss Patent, European Patent or International
| Filing Route | Authority | Coverage | Duration / Approx. Cost |
|---|---|---|---|
| Swiss patent | IPI Berne | Switzerland only | 20 years / CHF 2,000–5,000 |
| European patent (EPO) | European Patent Office (Munich) | Designated countries in Europe (incl. Switzerland) | 20 years / CHF 15,000–30,000+ |
| PCT application | WIPO Geneva | International phase + national phases | 30 months for national decision |
Rights Conferred by the Patent
The patent confers on its holder an exclusive right of exploitation of the invention in the covered territory:
- Right to manufacture the patented product
- Right to commercialise (sell, lease, deliver) the patented product
- Right to use the patented process
- Right to import the patented product
- Right to grant licences to third parties (exclusive or non-exclusive licence)
- Right to prohibit any third party from performing these acts without authorisation
Patent Infringement and Remedies
Patent infringement is the use of the patented invention without the authorisation of the holder. The available actions are:
- Provisional measures: urgent injunction by the Federal Patent Court (FPC) or the competent cantonal court
- Civil action for cessation (art. 72 PatA): permanent prohibition of infringement
- Action for damages (art. 73 PatA): compensation for the economic harm suffered
- Action for disgorgement of profits: restitution of the profits made by the infringer
- Criminal action (art. 81 PatA): fine or custodial sentence for intentional infringement (upon complaint)
The Federal Patent Court (FPC)
Since 1 January 2012, the Federal Patent Court (FPC), sitting in Nidau-Biel, is the sole judicial instance competent for patent disputes in Switzerland. It rules at first instance on actions for nullity and actions for patent infringement. The FPC judges are jurists and technical specialists in the fields of intellectual property and technology.
Which inventions can be patented in Switzerland?
Inventions that are new (not disclosed before filing), inventive (not obvious to a person skilled in the field) and susceptible of industrial application may be patented. Excluded are: scientific discoveries, mathematical theories, surgical methods, plant varieties (protected by other rights), and inventions contrary to public policy or morality.
How long does patent protection last in Switzerland?
The maximum duration of patent protection in Switzerland is 20 years from the filing date, subject to payment of annual maintenance fees. For medicinal products and plant protection products, a supplementary protection certificate (SPC) may extend protection for up to 5 additional years. Beyond these durations, the invention falls into the public domain.
Is it necessary to file both a Swiss patent AND a European patent?
No. A European patent granted by the European Patent Office (EPO), designating Switzerland, has the same effect as a Swiss patent once validated in Switzerland. The European patent covers one or more countries depending on the designation. For the Swiss market only, an IPI patent may be sufficient. For broader international protection, PCT (Patent Cooperation Treaty) applications via WIPO are an option.
How to act in the event of patent infringement in Switzerland?
In the event of patent infringement, you may: (1) send a cease and desist letter; (2) request urgent provisional measures from the Federal Patent Court or the competent cantonal court; (3) bring an action for cessation and damages. The Federal Patent Court (FPC) in Nidau-Biel has been competent for patent disputes since 2012.
Who owns the patent on an invention made by an employee?
In Switzerland (art. 332 CO), inventions made by an employee in the course of their work (service inventions) belong to the employer. The employee is entitled to equitable remuneration if the invention notably exceeds the scope of their contractual obligations. Inventions made outside working hours and without connection to professional activity belong to the employee.