Flexible means that applicants will in future be able to choose between a partially and a fully examined patent. If they request a full examination, the IPI will also examine novelty and inventive step and will only grant the patent if the invention meets all requirements. This patent will correspond to fully examined patents such as those granted under the European Patent Convention and in many other countries. If the applicant does not request a full examination, as before, the IPI will not examine novelty and inventive step within the scope of the substantive examination However, it will now carry out a state of the art search, which will allow the applicant and third parties to make their own assessment of their invention’s eligibility for protection.

All granted patents are identical in terms of duration of protection, scope of protection and so on, regardless of whether they are fully examined or not. However, if patents are partially examined (using the current procedure), there is no examination to determine whether the invention is novel and based on an inventive step – and thus whether the requirements for a legally valid patent are fulfilled. This means that it is possible to patent inventions that are not eligible for protection. By contrast, the IPI will examine all patentability requirements, including novelty and inventive step, for fully examined patents. This will increase legal certainty for the applicant and for third parties.

In the case of a fully examined patent, the IPI will check all the legal requirements, including the necessary novelty and inventive step, before granting the patent. This will offer several advantages:

• Legal certainty will increase for all parties involved because the IPI will examine all important aspects of the invention. This will prevent the granting of ‘junk patents’, that is, patents that do not fulfil the requirements for protection, such as novelty, but that can still be entered in the patent register if these requirements are not examined.
• It will make it easier to enforce patents against third parties, because in the case of civil proceedings, there will already be a strong indication of the legal validity of a patent due to the full examination.
• If a fully examined patent is licensed, the licensee’s risks will be lower.
• For SMEs in particular, a fully examined patent will be an alternative to a fully examined European patent granted by the European Patent Office (EPO) with protection extended to Switzerland – a path that is often laborious and costly.
• The fully examined patent will correspond to international standards and the patents of most member states of the European Patent Convention (EPC) as well as many states worldwide. In addition, it will meet the OECD requirements for IP rights that qualify for the patent box.

Today, anyone submitting technical documents in English must have them translated within 16 months. This is costly for applicants. Furthermore, there is a risk of translation errors, which may have a negative impact on the scope of protection of the patent. Therefore, Swiss patents filed in English will now also be published in English. Only the title of the invention and the abstract will need to be in an official Swiss language. Patent claims will not need to be translated.

No. Although English will be accepted in the examination procedure in future, it will not become a procedural language. Procedural decisions and rulings will continue to be issued in an official Swiss language.

Appeal procedures before the Federal Patent Court will still be conducted in the (official) language of the contested decision. The instructing judge and the parties will now have the option of agreeing to conduct proceedings in English. However, the judgment and the orders directing proceedings will be required to be drafted in an official language in any case.