PART IV PRELIMINARY EXAMINATION
Chapter 1 Field of Application and Organs
A. Field of Application of the Preliminary Examination
Art. 87
(1) [Repealed]
(2) Patent applications filed by the end of the month following entry into force of the amendment of February 3, 1995, to this Law and having the following subject matter shall be subject to preliminary examination:
(a) inventions of products obtained by the application of processes that are not purely mechanical for the improvement of textile fibers of all kinds, whether raw or already worked, as well as the processes themselves when the inventions relate to the textile industry;
(b) inventions with characteristics that suit them specifically to chronometric technology.
(3) [Repealed]
(4) [Repealed]
(5) The applicant may file opposition with the examiner against the latter's decision declaring that the application is subject to preliminary examination or that it is not; the decision on opposition may be appealed from to the Appeals Commission.
B. Bodies
Art. 88
(1) For the carrying out of tasks associated with preliminary examination, the Federal Institute of Intellectual Property shall comprise examiners and opposition divisions.
(2) [Repealed].
C. Examiners
Art. 89
(1) The examiners shall examine patent applications where their content is the decisive factor; they shall decide, in all cases where there is no opposition procedure, whether the patent should be granted.
(2) Each examiner shall perform his duties alone; he must possess a technical education.
(3) [Repealed].
D. Opposition Divisions
Art. 90
(1) The opposition divisions shall rule on oppositions; they shall take the decision regarding the grant of the patent.
(2) They shall be composed of lawyers and of technically educated members.
(3) Decisions may be taken only by patent sections composed of three members including the examiner.
(4) [Repealed]
E. Boards of Appeal
I. Competence
Art. 91 [Repealed]
II. Jurisdictional Independence; Decision Final
Art. 92 [Repealed]
III. Joint Boards
Art. 93 [Repealed]
IV. Appointment of Members
Art. 94 [Repealed]
Art. 95 [Repealed]
Chapter 2 Examination of the Patent Application
A. Before the Examiner
I. In General
Art. 96
(1) The patent application shall be examined by the examiner.
(1bis) [Repealed]
(2) If the examiner considers that the invention cannot be patented according to Articles 1, 1a and 2, he shall inform the applicant accordingly, stating his reasons, and shall set him a time limit for reply.
(3) If the examiner finds that the patent application does not comply with other provisions of the Law or the Ordinance, he shall grant the applicant a term to amend the application.
(4) The examiner shall not determine whether the invention is also new within the meaning of Article 7a.
II. Rejection of Appeal
Art. 97
The patent application shall be rejected if:
(a) it is not withdrawn, although the grant of a patent is barred for the reasons specified in Article 96(2); or
(b) the defects notified in accordance with Article 96(3) are not corrected;
(c) [Repealed]
B. Publications
I. Conditions
Art. 98
(1) If the grant of the patent does not appear to be barred for any of the reasons specified in Article 96(2) and if, in addition, the patent application complies in other respects with the provisions of this Law and the Ordinance, the examiner shall inform the applicant that the examination procedure has been completed.
(2) [Repealed]
(3) [Repealed]
II. Form
Art. 99
(1) The patent application shall be published with the following indications in particular: the number of the patent application; the classification symbols; the title of the invention; the filing date; the name and domicile of the applicant and, where appropriate, the indications relating to priority; the name and business address of the agent, and the name of the inventor.
(2) During the term allowed for opposition, the application shall be publicly displayed at the Federal Institute of Intellectual Property in order that any person may inspect its contents; it shall be accompanied by the report on the state of the art and by the priority documents, if any.
III. Postponement
Art. 100
(1) If the applicant so requests, publication may be postponed for a maximum of six months following the communication indicating that the examination procedure has been completed (Article 98).
(2) An extension beyond six months shall be allowed where the public interest requires that the invention be kept secret. The Federal Council shall specify the conditions for extension and the appropriate procedure.
C. Opposition
Art. 101
(1) Any person may, within three months from the date of publication, oppose the grant of the patent.
(2) Opposition may be based only on the ground that the invention is unpatentable
(Articles 1 and 1a) or that it is barred from patenting (Article 2). Opposition
based on lack of novelty owing to the existence of a prior right (Article
7a) may be filed even if the patent resulting from the application enjoying
an earlier filing or priority date has not yet been granted.
(3) Opposition shall be filed in writing. The facts stated and the proof adduced shall be indicated in a complete manner. If the opposition division so requests, the proof shall be submitted.
(4) If the opposition does not comply with this Article or with the Ordinance, the opposing party may be excluded from the procedure.
Art. 102 [Repealed]
Art. 103 [Repealed]
D. Costs Incurred in Determining
a State of Fact
Art. 104
In their decision regarding the grant of the patent, and as a result of the partial or total withdrawal of the patent application or the opposition, the examiner or the opposition division shall specify the extent to which the costs incurred in determining the state of fact shall be borne by the parties concerned.
E. Amendment of the Technical
Documents
Art. 105
(1) When the examination procedure has been completed (Article 98), amendments may be made to the technical documents only if this is warranted by the opposition or appeal procedure.
(2) [Repealed]
(3) Post-dating the application according to Article 58 is reserved.
F. Methods of Appeal
I. Appellate Body
Art. 106
(1) The decisions of the examiners and opposition divisions may be appealed from to the Appeals Commission.
(2) The decisions of the Intellectual Property Appeals Commission taken within the framework of the official preliminary examination shall be final.
(3) [Repealed]
(4) [Repealed]
II. Right to Appeal
Art. 106a
(1) The following may appeal to the Appeals Commission:
(a) the person who is concerned as a party to the procedure that resulted in the decision appealed against;
(b) the person whom the decision appealed against has excluded from the procedure (Article 101(4)).
(2) The opposing party shall have the right to appeal only insofar as he has been admitted as a party to the opposition procedure.
Art. 107 [Repealed]
Art. 108 [Repealed]
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