The unitary patent for Switzerland and Liechtenstein is a
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
having a unitary character over the territories of
Switzerland
). Swiss law does not designate a ''capital'' as such, but the federal parliament and government are installed in Bern, while other federal institutions, such as the federal courts, are in other cities (Bellinzona, Lausanne, Luzern, Neuchâtel ...
and
Liechtenstein
Liechtenstein (), officially the Principality of Liechtenstein (german: link=no, Fürstentum Liechtenstein), is a German-speaking microstate located in the Alps between Austria and Switzerland. Liechtenstein is a semi-constitutional monarchy ...
. It can either be a national patent, or a
European patent
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...
granted under the
European Patent Convention
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...
(EPC) and having a unitary character pursuant to .
The unitary patent "may only be granted, transferred, annulled or lapse in respect of the whole territory of protection," i.e. for both Switzerland and Liechtenstein.
[Article 4(1) of the Treaty of 22 December 1978]
The special agreement establishing this unitary patent is the Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection of 22 December 1978, which entered into force on 1 April 1980. This special agreement is also a regional patent agreement within the meaning of .
Amongst the bilateral treaties concluded between Switzerland and Liechtenstein in the field of patents, the Patent Treaty of 22 December 1978 is considered to be the most important one.
A European patent may only be granted jointly in respect of Switzerland and Liechtenstein, following a joint designation under .
[ The unitary patent for Switzerland and Liechtenstein is the only unitary patent under Article 142(1) EPC being currently in force. The agreement underlying the EU unitary patent, that would be valid in participating member states of the ]European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
, has been signed but is not in force, as of October 2019.
Background
Patents granted under the European Patent Convention (EPC) are called European patents. Those are granted following a unified grant procedure based on a single patent application
A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claims stated in a formal document, including necessary official forms and re ...
, in one language. After grant however, a European patent is not a unitary right, but becomes a bundle of essentially independent nationally-enforceable, nationally-revocable patents –subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure
An opposition proceeding is an administrative process available under the patent and trademark law of many jurisdictions which allows third parties to formally challenge the validity of a pending patent application ("pre-grant opposition"), of a gr ...
, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures
In European patent law, the limitation and revocation procedures before the European Patent Office (EPO) are post-grant, ''ex parte'',OJ 2007, Special edition 4/2007, page 116, item 1. administrative procedures allowing any European patent to be ce ...
, which can be initiated by the patent proprietor only.
Switzerland introduced a federal patent system a year after a referendum held in 1887 (before the subject was devoted to cantons, and in practice there was little protection). Until the entry into force of the Patent Treaty between Switzerland and Liechtenstein on 1 April 1980, Swiss patents could be also enforced in Liechtenstein, which at that time did not grant its own patents. This had been made possible by a regulation unilaterally enacted in 1924 by Liechtenstein, but considered only as a temporary measure. The legal situation was unsatisfactory. In the 1970s, when both the Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed und ...
(PCT) and the European Patent Convention (EPC) were signed and came into effect, to which Liechtenstein wished to participate, Liechtenstein had to either enact its own patent law or sign a regional patent treaty with Switzerland. Liechtenstein chose the latter possibility.[
]
Joint designation and unitary character
A European patent may only be granted jointly in respect of Switzerland and Liechtenstein, following a joint designation under Article 149 EPC. Upon filing a European patent application, an applicant cannot choose to designate Switzerland without designating Liechtenstein, or Liechtenstein without designating Switzerland. The designation of one of the two countries is deemed to be a designation of both. This also meant, for European patent applications filed before 1 April 2009 (before the introduction of an all-inclusive designation fee payable for all EPC contracting states), that a single joint designation fee was payable for Switzerland and Liechtenstein.[
After grant, the European patent in force in Switzerland and Liechtenstein—in the same manner as a "national" patent in Switzerland and Liechtenstein— has a truly unitary character. It can only be transferred, revoked or lapse for both states at the same time. It has also the same effect in both countries.] The Swiss Federal Institute of Intellectual Property
The Swiss Federal Institute of Intellectual Property ( French: ''Institut fédéral de la propriété intellectuelle'', IPI; German: ''Eidgenössisches Institut für Geistiges Eigentum'', IGE; Italian: ''Istituto federale della proprietà intelle ...
is the only competent national authority regarding the unitary patent for Switzerland and Liechtenstein.
An international application under the Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed und ...
(PCT) can also only jointly designate Switzerland and Liechtenstein under . Based on an international application, it is possible to obtain a unitary patent in Switzerland and Liechtenstein by entering either into the European regional phase (therefore leading to a Euro-PCT application, which is essentially the same as a direct European patent application) or into the national phase.[
]
Grant procedures
The unitary patent in Switzerland and Liechtenstein can either be a European patent granted under the European Patent Convention (EPC), or a national patent. The procedure leading to the grant of a European patent and the procedure leading to the grant of a "national" patent in Switzerland and Liechtenstein are, however, different.
The European Patent Office (EPO) is in charge of granting European patents. The grant procedure before the EPO is administrative procedure, which notably involves a substantive examination of the European patent application, in accordance with the legal provisions of the European Patent Convention
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...
(EPC).
In contrast, the grant procedure for "national" patents in Switzerland and Liechtenstein takes place before the Swiss Federal Institute of Intellectual Property and does not involve a substantial examination. No examination takes place as to whether the claimed invention is new
New is an adjective referring to something recently made, discovered, or created.
New or NEW may refer to:
Music
* New, singer of K-pop group The Boyz
Albums and EPs
* ''New'' (album), by Paul McCartney, 2013
* ''New'' (EP), by Regurgitator ...
and inventive. The patent is granted provided that certain formal requirements are fulfilled. It is possible to obtain a search report during the procedure, but this is optional and has no effect on the decision to grant.
Languages
While the language of the proceedings at the European Patent Office may only be English, French or German, the proceedings before the Swiss Federal Institute of Intellectual Property, for the grant of a "national" patent, are conducted in German, French or Italian. As Switzerland and Liechtenstein are parties to the London Agreement, no translation is required for a European patent to remain effective after grant in these two countries.
Jurisdiction
In Switzerland, the Federal Patent Court has exclusive jurisdiction over validity and infringement disputes, preliminary measures and enforcement of decisions made under its exclusive jurisdiction. The patent court started its work in 2012, taking over jurisdiction from 26 individual cantonal courts and consists of panels of both legally and technically qualified judges.[ In Liechtenstein, the Princely High Court (German: '' fürstliche Obergericht'') was designated as court of single instance in civil cases regarding patents.] Appeal is possible (with regard to legal issues) to the Federal Supreme Court, both for Swiss and Liechtenstein court actions.
See also
* Liechtenstein–Switzerland relations
Diplomatic and economic relations between Switzerland and Liechtenstein have been close, with Switzerland accepting the role of safeguarding the interests of its smaller neighbour, Liechtenstein.
References
External links
Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection (Patent Treaty) (Vaduz, December 22, 1978)
WIPO web site
Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection (Patent Treaty) of 22 December 1978
OJ EPO 1980, 407.
*
Vertrag zwischen der Schweizerischen Eidgenossenschaft und dem Fürstentum Liechtenstein über den Schutz der Erfindungspatente (Patentschutzvertrag)
on admin.ch (''Die Bundesbehörden der Schweizerischen Eidgenossenschaft'')
*
on admin.ch (''Les autorités fédérales de la Confédération suisse'')
{{European Patent Organisation
European patent law
European Patent Organisation
Liechtenstein–Switzerland relations
Patent law by country
Patent law treaties
Swiss patent law
Treaties concluded in 1978
Treaties entered into force in 1980
Treaties of Switzerland
Treaties of Liechtenstein