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Patent law in a nutshell – requirements for a patent

Anyone who founds an innovative start-up may have to apply for a patent to protect his ideas from imitators. Find out in the article which conditions must be met to obtain a patent.

Swiss patent law is governed by the Federal Act on Patents for Inventions (PatA) and the associated Ordinance on Patents for Inventions (PatV). An invention can concern a product (product patent) or a process (process patent). Inventions that meet the following three conditions are patentable (Art. 1 PatA):

Invention is new

For an invention to be patentable, it must be new, i.e. it must not be part of the state of the art. Prior art is all knowledge that is publicly available anywhere in the world before the patent is filed. This includes other patents, written publications and Internet publications as well as public lectures or exhibitions. Note: If an invention or parts of it are published before the patent application is filed, it is also considered to be publicly available. It is therefore important to keep inventions secret until the patent application is filed.

Depending on the country and patent office, this condition is interpreted differently. In a famous decision, the Dutch patent court denied patentability of a method for recovering shipwrecks by balloon, because such an idea had already been published in a Donald Duck comic strip. Such curious decisions are the exception, however.

Invention is inventive

An invention must also be truly inventive. What may sound banal is also an important prerequisite for patentability. In patent law it is said that an invention must not be obvious to an average person skilled in the art from the prior art. If a person skilled in the art is asked, he or she must not easily come up with the same solution as the invention for which a patent is applied for. Otherwise the inventive aspect is missing and consequently the patentability is missing.

Invention is industrially applicable

An invention must also be susceptible of industrial application. This means it must be commercially usable, feasible and repeatable.

For patentability to be granted, these three conditions must be met. In addition, there are a number of exceptions which exclude patentability (Art. 2 PatA). For example, plants, animal breeds or processes for cloning human beings are not patentable.

Note: The requirements (novelty & inventive step) are not examined in the Swiss grant procedure, the patent is granted without guarantee. However, the patent can be challenged by third parties on the basis of the patentability requirements, which leads to costly legal proceedings. It is therefore worth checking for yourself before filing an application to see whether the requirements are met.

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