PART V EUROPEAN PATENT APPLICATIONS AND EUROPEAN PATENTS
Chapter 1 Applicable Law
Scope of the Law; Relation to the European Patent
Convention
Art. 109
(1) This Part shall apply to European patent applications and European patents that produce their effects in Switzerland.
(2) The other provisions of this Law shall be applicable except where the Convention of October 5, 1973, on the Grant of European Patents (European Patent Convention) or this Part provides otherwise.
(3) The text of the European Patent Convention that binds Switzerland shall have precedence over this Law.
Chapter 2 Effects of the European Patent Application and of the European Patent
A. Principle
Art. 110
Applications for European patents to which a filing date has been assigned and European patents shall produce the same effects in Switzerland as patent applications filed in due form with the Federal Institute of Intellectual Property and patents granted by that Institute.
B. Provisional Protection Afforded by European Patent Application
Art. 111
(1) Published European patent applications shall not confer on the applicant the protection provided for in Article 64 of the European Patent Convention.
(2) However, the injured party may, in an action for damages, invoke the damages caused by the defendant as from the moment at which the latter became aware of the content of the European patent application, but at the latest as from the date of publication of the application by the European Patent Office.
C. Reservation Concerning Translations
I. For Published European Patent Applications
Art. 112
Where the European patent application has not been published in a Swiss official language, the date to be taken into consideration for the claim of damages shall be that on which the applicant:
(a) communicated to the defendant a translation of the claim in a Swiss official language; or
(b) made it available to the public through the intermediary of the Federal Institute of Intellectual Property.
II. For European Patents
Art. 113
(1) Where the European patent has not been published in a Swiss official language, the patent applicant or patent owner shall file with the Federal Institute of Intellectual Property a translation of the patent specification in a Swiss official language.
(2) The European patent shall be deemed not to have produced any effect if the translation of the patent specification has not been submitted within three months of the publication:
(a) in the European Patent Bulletin, of the notice of grant of the patent;
(b) of the notice of the decision on opposition where the patent has been maintained in its amended form in the course of opposition proceedings.
III. Revision of Translations
Art. 114
(1) The patent applicant or patent owner may revise translations of the patent.
(2) The revised translation shall produce its effects only after it has been made available to the public through the intermediary of the Federal Institute of Intellectual Property, or communicated to the defendant in the case of Article 112.
D. Authentic Languages
I. Language of Procedure
Art. 115
With respect to the scope of protection conferred by the European patent application or the European patent, the text in the language of the procedure before the European Patent Office shall be authentic.
II. Language of the Translation;
Right of Concurrent Use
Art. 116
(1) Third parties may invoke the translation provided for in this Law in dealings with the owner of the patent when the European patent application or the European patent confers less extensive protection according to the text of that translation than according to the text in the language of the procedure.
(2) Where the patent applicant or patent owner has revised the translation of the patent in such a way that it produces its effects, the European patent may not be invoked against a person who, in good faith, had previously used the invention professionally in Switzerland or had made special preparations for that purpose.
(3) This right of use shall be governed by Article 35(2).
Chapter 3 Administration of the European Patent
A. Swiss Register of European
Patents
Art. 117
As soon as the grant of the European patent has been recorded in the European Patent Journal, the Federal Institute of Intellectual Property shall record it in the Swiss Register of European Patents, with the particulars mentioned in the Register of European Patents.
B. Publications
Art. 118
The Federal Institute of Intellectual Property shall publish the entries made in the Swiss Register of European Patents.
C. Annual Fees for the European
Patent
Art. 119 [Repealed]
D. Representation
Art. 120
The Federal Council may authorize the agent identified in the Register of European Patents to act before the Federal Institute of Intellectual Property in procedures concerning European patents insofar as there is reciprocity with respect to representation before the special departments of the European Patent Office (Article 143 of the European Convention).
Chapter 4 Transformation of the European Patent Application
A. Causes for Transformation
Art. 121
(1) The European patent application may be transformed into a Swiss patent application:
(a) in the cases provided for in Article 135(1)(a) of the European Patent Convention;
(b) in the case of failure to observe the time limit provided for in Article 14(2) of the European Patent Convention, where the original application was filed in Italian;
(c) where the European Patent Office has established that the application is not in conformity with Article 54(3) and (4) of the European Patent Convention, and that, for that reason, it has been rejected or withdrawn with respect to its effect in Switzerland.
(2) Transformation into a Swiss patent application shall also be allowed where the European patent has been revoked for the reason indicated in subparagraph (1)(c).
B. Legal Effects
Art. 122
(1) Where the transformation is filed in due form and communicated in good time to the Federal Institute of Intellectual Property, the patent application shall be deemed to have been filed on the date of filing of the European patent application.
(2) The documents accompanying the European patent application or European patent that were filed with the European Patent Office shall be deemed to have been filed at the same time with the Federal Institute of Intellectual Property.
(3) The rights attaching to the European patent application shall remain valid.
C. Translation
Art. 123
Where the language in which the original text of the European patent application is drafted is not a Swiss official language, the Federal Institute of Intellectual Property shall allow the applicant a period of time within which to file a translation in a Swiss official language.
D. Reservation in Favor of
the European Patent Convention
Art. 124
(1) Subject to Article 137(1) of the European Patent Convention, the provisions in force for Swiss patent applications shall apply to patent applications resulting from translation.
(2) The claim of a patent application resulting from transformation of a European patent may not be drafted in such a way that the protection conferred by the patent is thereby extended.
Chapter 5 Provisions Concerning Protection Under Civil Law and Criminal Law
A. Prohibition on Cumulative
Protection
I. Predominance of the European
Patent
Art. 125
(1) Where, for one and the same invention, a Swiss patent and a European patent having effect in Switzerland have been granted to the same inventor or to his successor in title with the same filing or priority date, the Swiss patent shall have no further effect as from the date on which:
(a) the time limit for filing opposition to the European patent has lapsed; or
(b) the opposition procedure has resulted in a final decision maintaining the European patent in force.
(2) Article 27 shall apply mutatis mutandis.
II. Predominance of Patents
Resulting From Transformation
Art. 126
(1) Where, for one and the same invention, a patent resulting from a Swiss or international patent application (Article 131 et seq.) and a patent resulting from a transformed European patent application have been granted to the same inventor or to his successor in title with the same filing or priority date, the first-mentioned patent shall have no further effect as from the date on which the patent resulting from the transformed European patent application was granted.
(2) Article 127 shall apply mutatis mutandis.
B. Rules of Procedure
I. Limitation of Partial Renunciation
Art. 127
The request in respect of partial renunciation of the European patent shall not be acceptable insofar as opposition to the patent may yet be filed with the European Patent Office or a final decision has not been taken on the subject of an opposition already filed.
II. Suspension of Procedure
a. Civil Procedure
Art. 128
The court may suspend the procedure, and in particular defer judgment, where the validity of a European patent has been contested and where one of the parties to the dispute gives proof that opposition may yet be filed with the European Patent Office or that a final decision has not been taken on the subject of an opposition already filed.
b. Criminal procedure
Art. 129
(1) If, in the case provided for in Article 86, the party proceeded against invokes the exception of the nullity of the European patent, the court may allow him, insofar as opposition to the patent may yet be filed with the European Patent Office or intervention in an opposition procedure is still possible, an appropriate time limit for the filing of opposition or for intervention in the opposition procedure.
(2) Article 86(2) shall apply mutatis mutandis.
Chapter 6 Letters Rogatory Issued by the European Patent Office
Transmitting Authority
Art. 130
The Federal Institute of Intellectual Property shall receive letters rogatory issued by the European Patent Office and shall transmit them to the competent authority.
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