A big year for Swiss IP legislation

Patent law
Copyright law
Other legislative amendments

In the course of 2007 the Swiss legislative authority has approved and, in part, implemented an unusually high number of amendments to national IP laws and international treaties. 

Patent law
The Patent Act was amended five times during 2007:

• In connection with the ratification of the Patent Law Treaty of June 1 2000 and its ordinance, some provisions concerning patent applications were modified on June 22 2007 (Articles 13, 46a, 56, 57 and 58 of the act). 
• The ratification of an amendment to the European Patent Convention necessitated amendments to the definition of ‘protectable inventions on a national level’ (Articles 1, 1a, 7c, 7d, 17, 24, 26, 28 and 46a of the act) and adaptations of the provisions concerning the effect of European patents on the act (Articles 110a, 113, 121, 127 and 128). On the same occasion priority was extended to all signatories to the Agreement on Trade-Related Aspects of Intellectual Property Rights (Article 17). The amendment is due to come into force on December 13 2007.
• The opening of the Federal Administrative Court on January 1 2007 necessitated some formal corrections to the act (Articles 46a, 59c, 76, 87, 106, 106a and 141).
• A more fundamental amendment to the act was passed on June 22 2007 and is due to come into force in 2008. Under this amendment:
  • the human body and its parts in their natural surroundings, as well as natural gene sequences, were excluded from patent protection (Articles 1a and 1b of the act);
  • moral limits to patentability were introduced (Article 2);
  • ‘novelty’ (Articles 7, 7c and 7d) and the ‘scope of protection’ (Articles 8, 8a, 8b, 8c, 9 and 9a) were redefined;
  • a right of use of inventions for research, compulsory licensing for diagnostics and export of pharmaceutical products was introduced (Articles 40b, 40c, 40d and 40e);
  • the required description and the deposit of biological material was further regulated (Articles 49, 49a, 50a, 58a and 59);
  • an opposition procedure based on the claim of absence of patentability was introduced (Article 59c);
  • exclusive licensees were granted an independent right to sue (Article 75);
  • provisions concerning the enforcement of patents were strengthened; and
  • a procedure of compulsory assistance by customs authorities was introduced (Article 86a ff).
• The fifth amendment to the act tatified the 1991 International Convention for the Protection of New Varieties of Plants on October 5 2007. It concerns the use of protected seeds (Article 35a of the act) and dependent rights in plant varieties (Article 36a).

With respect to international treaties concerning patents, the Patent Law Treaty 2000 and its ordinance were ratified and will enter into force some time in 2008. The revised European Patent Convention 2000 was also ratified and is due to enter into force in Switzerland on December 13 2007. 

Copyright law
The Swiss Copyright Act was amended four times in 2007:

• In connection with the ratification on October 5 2007 of the World Intellectual Property Organisation’s Copyright Treaty and Performances and Phonograms Treaty (the WIPO Internet Treaties), the definition of ‘performance’ in the Copyright Act (Articles 10, 33, 33a, 36, 37 and 39 of the act) had to be amended and a clause concerning technical protection measures was introduced (Articles 39a and 39c). Corresponding enforcement provisions were also added (Articles 67, 69 and 69a).
• A separate amendment to the Copyright Act was passed on October 5 2007. It amended the provisions on private use and copying of works (Article 19) and admitted special forms of restricted use or use under special circumstances (Articles 22a, 22b and 22c). In addition, it permitted temporary recording and recording for purposes of broadcast (Articles 24a and 24b) and introduced special treatment for copies made by or for disabled persons (Article 24).
• Article 74 of the act was amended in connection with the introduction of the Federal Administrative Court on January 1 200. The amendment was purely formal.
• A fourth major amendment to the act was approved by Parliament in the form of an appendix to the amendment of the Patent Act of June 22 2007. It improves the enforcement of copyright by granting exclusive licensees the right to sue (Article 62 of the Copyright Act). It also criminalises the refusal to disclose the source of infringing material (Articles 62, 67 and 69) and sets out detailed regulations on customs authorities’ power to detain goods at borders (Article 75 to 77h).

The WIPO Internet Treaties will presumably enter into force in Switzerland in 2008. 

Other legislative amendments
The Trademark Act, the Design Act and the Law on the Protection of Topographies were amended in connection with the amendment of the Patent Act of June 22 2007 in the form of an annex to that amendment. The changes concern:

• the extension of the protection to goods in transit (private use);
• the enforcement of the obligation to disclose the source of goods under criminal law provisions;
• the right of an exclusive licensee to sue; and
• an extended regulation of the cooperation with the customs authorities. 

The Law on the Protection of Plant Varieties was amended on October 5 2007 in connection with the ratification of the 1991 version of the International Convention for the Protection of New Varieties of Plants. Under the amendments:

• the varieties that may be protected (Article 8b of the law) and the scope of protection (Articles 5, 6, 7, 8 and 8a) were redefined;
• the provisions concerning the protection of indications of new plant varieties and the enforcement of rights in plant varieties were almost totally overhauled (Articles 12 to 17);
• compulsory licences were newly regulated (Articles 22, 22a and 22b); and
• provisions on examination and provisional measures were amended (Articles 29, 30, 31a and 43).

However, the Law on the Protection of Plant Varieties was not included in the partial harmonisation of enforcement provisions of IP laws orchestrated by the legislator in connection with the amendment of the Patent Act in June 2007.