On 1 June 2000, the Patent Law Treaty (PLT) was negotiated and signed by Switzerland. This agreement harmonises certain patent law formalities and therefore contributes to better legal security for patent system users in an increasing global environment. The approval and implementation of this treaty was also the goal of the reform process.

This infringement has increased substantially in the last few years all over the world. The economic damage is enormous. Innovative Swiss companies have been heavily affected. In addition to losses to the Swiss economy, consumers are also hurt. The civil and criminal instruments available up until now have not stopped piracy. The revised law reinforces legal remedies as well as modernising them. As well as importing and exporting, transiting is also now included. Penalties for commercial counterfeiting and piracy have considerably increased. Finally, under the new law, counterfeit goods found in the luggage of individuals can be seized at the border.

The provision of medical supplies is often precarious in developing countries. These lands often have very few pharmaceutical manufacturers and the building of infrastructure for it is mostly out of the question. Developing countries are therefore dependent on foreign manufacturers. Recourse to production capacity abroad can fail if the patent protection in that country does not allow the manufacture of the medicine without the permission of the rights holder. According to the law of the World Trade Organisation (WTO), compulsory licenses are only allowed for the supply of the domestic market. Following the changes made to international law, the revised Patent Act makes use of the newly created possibility to also authorise compulsory licenses for export. In cases of serious public health epidemics, developing countries therefore have access to production capacities in Switzerland under the conditions defined by the World Trade Organisation.

Biotechnological inventions are to do with biological material that multiplies itself and demonstrates great complexity.  With a series of modifications, the revised Patent Act allows for these particularities. It guarantees effective and appropriate protection for biotechnological inventions and creates a reliable legal framework. In detail, it concerns the following modifications:

• Articles 1a and 1b define the limits of patentability relating to the human body and its gene sequences. They clarify when an invention exists in terms of patent law. In addition to prohibiting the patenting of human beings as such in Article 1a, the general reservation regarding public order and morality (Article 2, para. 1) allows the ethical limits in the area of living nature to be defined. The non-exhaustive list of ethical prohibitions should serve as a guideline when applying the reservation of public order (“ordre public”).
• Exceptions concerning the effect of a patent are now regulated by law (Article 9). In particular, the experimental use privilege is now embodied in the law. It allows scientific research on the object of an invention independent of the patent holder’s permission. The research can also be commercially orientated but must be aimed at gaining knowledge about the invention. In addition, the new law authorises all actions necessary for the approval of a pharmaceutical product in Switzerland or abroad. This facilitates easier market access for generics as the licensing procedure can be carried out even within the patent protection period.  If a biotechnological invention serves as a research tool or aid, then Article 40b requires a license to use it. A further exception is that a patent holder can no longer refuse permission for the use of a patented invention for teaching purposes. Patented biological matter that is, within the domain of agriculture, unintentionally reproduced or produced because it is technically unavoidable, is now also excluded from the effects of the patent. This will protect farmers from excessive claims.
• In accordance with the revised law, the patent applicant is obliged to give information regarding the source of a genetic resource and traditional knowledge in the patent application. These measures lead to greater transparency and simplify getting permission to access these resources and knowledge necessary for retrospective verification, as well as enforcing the distribution of any economic advantages resulting from their exploitation.
• With the publication of patent applications and the introduction of a limited opposition procedure as well as an optional prior art search, the new law introduces substantial changes and improvements to the national patent system, which increases transparency, assures the  early dissemination of knowledge and improves the position of third parties. These changes are particularly important for the sensitive area of biotechnological inventions and strengthen the national patent system in general.

The first formal step towards a reform of the Patent Act was given by a motion by Council of State Member Helen Leumann-Würsch on 10 June 1998 (98.3243 – Revision of the Swiss Patents for Inventions, in German or French). She requested the Federal Council to adapt the Patent Act in accordance with the European Parliament’s guidelines 98/44/EC and advice of 6 July 1998 concerning the legal protection of biotechnological inventions (AB1. EG No. L 213 of 30 July 1998, p.13). Further points concerning the reform were also added, which allowed the thematically-limited partial revision to grow into a broad reform of patent law.  Following the conclusion of the second consultation, the Federal Council decided to phase in the various individual aspects of the reform under the following schedule by taking into consideration the various priorities and implications:

• Stage one: Approval of the revised European Patent Convention and the London Agreement
• Stage two: Revision of the Patent Act (with emphasis on protection of biotechnological inventions) and approval of the Patent Law Treaty
• Stage three: Patent Attorney Act and Patent Court Act