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Chapter 5 Legal Restrictions on Patent Rights A. Third Party Right Derived From Prior Use; Foreign Vehicles Art. 35 (1) A patent shall have no effect against persons who, prior to the date of filing of the patent application, were in good faith professionally using the invention in Switzerland or had made special preparations for that purpose. (2) Any such person may use the invention for the purposes of their trade or business; this right may be transferred only by assignment or inheritance, together with the trade or business. (3) A patent shall have no effect with regard to vehicles which are only temporarily in Switzerland and to equipment applied to these vehicles. B. Dependent Inventions Art. 36 (1) If a patented invention cannot be used without infringing a prior patent, the owner of the more recent patent shall have the right to the grant of a non-exclusive license to the extent required for such use of his invention, provided that the invention represents an important technical advance of considerable economic interest in relation to the invention that is the subject of the first patent. (2) A license to use the invention that is the subject matter of the first patent may only be assigned jointly with the second patent. (3) The owner of the first patent may make the grant of a license conditional on the fact that the holder of the second patent afford to him in turn a license to use his invention. C. Working the Invention in Switzerland I. Action for Grant of License Art. 37 (1) After a period of three years from the date of grant of a patent, but not sooner than four years after the filing of the application, any person having a legitimate interest may apply to the court for the grant of a non-exclusive license to use the invention if, until the time of filing such action, the owner of the patent has not worked the invention to a sufficient extent in Switzerland and cannot give a good reason for his failure to do so. Importing shall be deemed to constitute working of the patent in Switzerland. (1bis) [Repealed] (2) [Repealed] (3) At the request of the petitioner, the court may grant a license immediately after the action has been filed, without prejudice to the final decision, providing that, in addition to the conditions set out in paragraph (1), the petitioner furnishes prima facie evidence of his interest in the immediate use of the invention and that he provides adequate security to the defendant; the defendant shall be heard beforehand. II. Action for Revocation of the Patent Art. 38 (1) If the grant of licenses does not suffice to meet the demand of the Swiss market, any person proving an interest may take action for the revocation of the patent after a period of two years from the grant of the first license under Article 37(1). (2) If the law of the country of which the owner of the patent is a national or in which he is resident allows action for revocation of the patent for failure to work the invention in that country as early as three years after the grant of the patent, such action shall be allowed in place of the action for the grant of a license, subject to the conditions specified in Article 37 for the grant of licenses. III. Exceptions Art. 39 The Federal Council may decree Articles 37 and 38 to be inapplicable against the nationals of countries granting reciprocity. D. Licenses in the Public Interest Art. 40 (1) Where the public interest so dictates, the person to whom the owner of the patent has, without sufficient reason, refused to grant the license requested may apply to the court for the grant of a license to use the invention. (2) [Repealed] E. Compulsory Licenses in the Field of Semiconductor Technology Art. 40a In the case of an invention in the field of semiconductor technology, a non-exclusive license may only be granted in order to remedy a practice that has been declared contrary to competition law in a judicial or administrative proceeding. F. Provisions Common to Articles 36 to 40a Art. 40b (1) The licenses referred to in Articles 36 to 40a shall only be granted if the efforts undertaken by the petitioner to obtain a contractual license on reasonable commercial conditions have not succeeded within a reasonable period of time. Such efforts shall not be a requirement in situations of national emergency or in other circumstances of extreme urgency. (2) The scope and duration of licenses shall be limited to the purposes for which they have been granted. (3) Licenses may only be assigned together with that part of the enterprise in which they are worked. The same shall apply to sublicenses. (4) Licenses shall be granted mainly for the supply of the internal market. (5) On a petition, the court may withdraw a license from the person holding it if the circumstances that have led to its grant cease to exist and it appears probable that they will not reoccur. The legitimate interests of the entitled person shall enjoy adequate protection. (6) The owner of the patent shall be entitled to equitable remuneration. That remuneration shall be determined as a function of the particular case and of the economic value of the license. (7) The court shall decide on the grant and withdrawal of a license, on the scope and duration of the license and on the remuneration to be paid.

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