Federal Act
on Patents for Inventions
(Patents Act, PatA)¹

¹ Pat­ents for in­ven­tions are gran­ted for new in­ven­tions ap­plic­able in in­dustry.

² Any­thing that is ob­vi­ous hav­ing re­gard to the state of the art (Art. 7 para. 2) is not pat­entable as an in­ven­tion.⁷

³ Pat­ents are gran­ted without the guar­an­tee of the State.⁸

¹ The hu­man body as such, at all stages of its form­a­tion and de­vel­op­ment, in­clud­ing the em­bryo, is not pat­entable.

² Ele­ments of the hu­man body in their nat­ur­al en­vir­on­ment are not pat­entable. An ele­ment of the hu­man body is, however, pat­entable as an in­ven­tion if it is pro­duced by means of a tech­nic­al pro­cess, a be­ne­fi­cial tech­nic­al ef­fect is in­dic­ated and the fur­ther re­quire­ments of Art­icle 1 are ful­filled; Art­icle 2 re­mains re­served.

¹ A nat­ur­ally oc­cur­ring se­quence or par­tial se­quence of a gene is not pat­entable as such.

² Se­quences that are de­rived from a nat­ur­ally oc­cur­ring se­quence or par­tial se­quence of a gene may, however, be pat­en­ted as an in­ven­tion if they are pro­duced by means of a tech­nic­al pro­cess, their func­tion is spe­cific­ally in­dic­ated, and the fur­ther re­quire­ments of Art­icle 1 are ful­filled; Art­icle 2 re­mains re­served.

¹ In­ven­tions whose ex­ploit­a­tion is con­trary to hu­man dig­nity or that dis­reg­ard the in­teg­rity of liv­ing or­gan­isms or that are in any oth­er way con­trary to pub­lic policy or mor­al­ity are not pat­entable. In par­tic­u­lar, no pat­ent may be gran­ted for:

a.

pro­cesses for clon­ing hu­man be­ings and the clones ob­tained thereby;

b.

pro­cesses for form­ing hy­brid or­gan­isms by us­ing hu­man germ cells, hu­man to­ti­po­tent cells or hu­man em­bryon­ic stem cells and the en­tit­ies ob­tained thereby;

c.

pro­cesses of partheno­gen­es­is by us­ing hu­man ger­min­al ma­ter­i­al and the partheno­gen­et­ic en­tit­ies ob­tained thereby;

d.

pro­cesses for modi­fy­ing the germ line ge­net­ic iden­tity of hu­man be­ings and the germ line cells ob­tained thereby;

e.

un­mod­i­fied hu­man em­bryon­ic stem cells and stem cell lines;

f.

the use of hu­man em­bry­os for non-med­ic­al pur­poses;

g.

pro­cesses for modi­fy­ing the ge­net­ic iden­tity of an­im­als which are likely to cause them suf­fer­ing without be­ing jus­ti­fied by over­rid­ing in­terests worthy of pro­tec­tion, and also an­im­als res­ult­ing from such pro­cesses.

² Also ex­cluded from pat­entab­il­ity are:

a.

meth­ods for treat­ment by sur­gery or ther­apy and dia­gnost­ic meth­ods prac­tised on the hu­man or an­im­al body;

b.

plant vari­et­ies and an­im­al vari­et­ies or es­sen­tially bio­lo­gic­al pro­cesses for the pro­duc­tion of plants or an­im­als; however, sub­ject to the re­ser­va­tion of para­graph 1, mi­cro­bi­o­lo­gic­al or oth­er tech­nic­al pro­cesses and the products ob­tained thereby as well as in­ven­tions that con­cern plants or an­im­als are pat­entable provided that their ap­plic­a­tion is not tech­nic­ally con­fined to a single plant or an­im­al vari­ety.

¹ The in­vent­or, his suc­cessor in title, or a third party own­ing the in­ven­tion un­der any oth­er title has the right to the grant of the pat­ent.

² Where sev­er­al in­vent­ors have made an in­ven­tion jointly, they have this right jointly.

³ Where two or more in­vent­ors have made the in­ven­tion in­de­pend­ently of each oth­er, the per­son who makes the earli­er ap­plic­a­tion or whose ap­plic­a­tion has the earli­est pri­or­ity date has this right.

In the pro­ced­ure be­fore the Swiss Fed­er­al In­sti­tute of In­tel­lec­tu­al Prop­erty¹² (IPI)¹³, the pat­ent ap­plic­ant is deemed en­titled to re­quest the grant of the pat­ent.

¹ The pat­ent ap­plic­ant must provide the IPI with writ­ten con­firm­a­tion of the name of the in­vent­or.¹⁴

² The per­son named by the pat­ent ap­plic­ant shall be men­tioned as the in­vent­or in the Pat­ent Re­gister, in the pub­lic­a­tion of the pat­ent ap­plic­a­tion and in the grant of the pat­ent, as well as in the pat­ent spe­cific­a­tion.¹⁵

³ Para­graph 2 ap­plies by ana­logy if a third party pro­duces an en­force­able judg­ment es­tab­lish­ing that he and not the per­son named by the pat­ent ap­plic­ant is the in­vent­or.

¹ If the in­vent­or named by the pat­ent ap­plic­ant waives his right to the meas­ures provided for in Art­icle 5 para­graph 2, these meas­ures shall not be taken.

² A de­clar­a­tion made be­fore­hand by the in­vent­or waiv­ing the right to be men­tioned as such has no leg­al ef­fect.

¹ An in­ven­tion is con­sidered to be new if it does not form part of the state of the art.

² The state of the art com­prises everything made avail­able to the pub­lic by means of a writ­ten or or­al de­scrip­tion, by use, or in any oth­er way pri­or to the fil­ing or pri­or­ity date.

³ With re­gard to nov­elty, the state of the art also in­cludes the con­tent of an earli­er ap­plic­a­tion or ap­plic­a­tion with earli­er pri­or­ity des­ig­nat­ing Switzer­land in the ver­sion ori­gin­ally filed, and with a fil­ing or pri­or­ity date that pre­cedes the date men­tioned in para­graph 2, and which was only made avail­able to the pub­lic on or after that date, provided that:

a.

in the case of an in­ter­na­tion­al ap­plic­a­tion, the re­quire­ments of Art­icle 138 are ful­filled;

b.

in the case of a European ap­plic­a­tion based on an in­ter­na­tion­al ap­plic­a­tion, the re­quire­ments of Art­icle 153 para­graph 5 of the European Pat­ent Con­ven­tion of 5 Oc­to­ber 1973 in its re­vised ver­sion of 29 Novem­ber 2000¹⁷ are ful­filled;

c.

in the case of a European ap­plic­a­tion, the fees for the val­id des­ig­na­tion of Switzer­land as per Art­icle 79 para­graph 2 of the European Pat­ent Con­ven­tion of 5 Oc­to­ber 1973 in its re­vised ver­sion of 29 Novem­ber 2000 have been paid.¹⁸

Where the in­ven­tion has been made avail­able to the pub­lic in the six months pri­or to the ap­plic­a­tion date or pri­or­ity date, this dis­clos­ure does not form part of the state of the art when it is due to, or a con­sequence of:²¹

a.

an evid­ent ab­use in re­la­tion to the pat­ent ap­plic­ant or his leg­al pre­de­cessor; or

b.

the fact that the pat­ent ap­plic­ant or his leg­al pre­de­cessor has dis­played the in­ven­tion at an of­fi­cial or of­fi­cially re­cog­nised in­ter­na­tion­al ex­hib­i­tion fall­ing with­in the terms of the Con­ven­tion on In­ter­na­tion­al Ex­hib­i­tions of 22 Novem­ber 1928²², and he has de­clared the fact at the time of fil­ing and has pro­duced suf­fi­cient sup­port­ing evid­ence in due time.

Any sub­stance or com­pos­i­tion that forms part of the state of the art as such, but not in re­la­tion to its use in a sur­gic­al, thera­peut­ic or dia­gnost­ic meth­od spe­cified in Art­icle 2 para­graph 2 let­ter a²⁴ is deemed to be new provided it is in­ten­ded solely for such use.

Any sub­stance or com­pos­i­tion that forms part of the state of the art as such, but not in re­la­tion to a spe­cif­ic use in a sur­gic­al, thera­peut­ic or dia­gnost­ic meth­od spe­cified in Art­icle 2 para­graph 2 let­ter a²⁶ that is dis­tinct from the first med­ic­al use spe­cified in Art­icle 7c is deemed to be new provided it is in­ten­ded for use in the man­u­fac­ture of a means to a sur­gic­al, thera­peut­ic or dia­gnost­ic end.

¹ The pat­ent con­fers on its pro­pri­et­or the right to pro­hib­it oth­ers from com­mer­cially us­ing the in­ven­tion.

² Use in­cludes, in par­tic­u­lar, man­u­fac­tur­ing, stor­age, of­fer­ing, pla­cing on the mar­ket, im­port­ing, ex­port­ing and car­ry­ing in trans­it, as well as pos­ses­sion for any of these pur­poses.

³ Car­ry­ing in trans­it may only be pro­hib­ited if the pro­pri­et­or of the pat­ent is per­mit­ted to pro­hib­it im­port­a­tion in­to the coun­try of des­tin­a­tion.

¹ If the in­ven­tion con­cerns a man­u­fac­tur­ing pro­cess, the ef­fects of the pat­ent also ex­tend to the products dir­ectly ob­tained by that pro­cess.

² If the products dir­ectly ob­tained by the pro­cess con­cern bio­lo­gic­al ma­ter­i­al, the ef­fects of the pat­ent also ex­tend to products ob­tained by propagat­ing the bio­lo­gic­al ma­ter­i­al and which demon­strate the same char­ac­ter­ist­ics. Art­icle 9a para­graph 3 re­mains re­served.²⁹

If the in­ven­tion con­cerns a product that con­sists of or con­tains ge­net­ic in­form­a­tion, the ef­fects of the pat­ent ex­tend to any ma­ter­i­al in which the product is in­cor­por­ated and in which the ge­net­ic in­form­a­tion is con­tained and per­forms its func­tion. Art­icle 1a para­graph 1 and 9a para­graph 3 re­main re­served.³¹

The pro­tec­tion con­ferred by a claim to a nuc­le­otide se­quence that is de­rived from a nat­ur­ally oc­cur­ring se­quence or par­tial se­quence of a gene is lim­ited to the se­quence seg­ments that per­form the func­tion spe­cific­ally de­scribed in the pat­ent.

¹ The ef­fects of the pat­ent do not ex­tend to:

a.

acts un­der­taken with­in the private sphere for non-com­mer­cial pur­poses;

b.

acts un­der­taken for re­search or ex­per­i­ment­al pur­poses in or­der to ob­tain know­ledge about the sub­ject-mat­ter of the in­ven­tion in­clud­ing its uses; in par­tic­u­lar, any sci­entif­ic re­search con­cern­ing the sub­ject-mat­ter of the in­ven­tion is per­mit­ted;

c.

acts ne­ces­sary for ob­tain­ing mar­ket­ing au­thor­isa­tion for a medi­cin­al product in Switzer­land or in coun­tries with equi­val­ent medi­cin­al product con­trol;

d.

the use of the in­ven­tion for teach­ing pur­poses at edu­ca­tion­al in­sti­tu­tions;

e.

the use of bio­lo­gic­al ma­ter­i­al for the pur­pose of the pro­duc­tion or the dis­cov­ery and de­vel­op­ment of a plant vari­ety;

f.

bio­lo­gic­al ma­ter­i­al that is ob­tained in the field of ag­ri­cul­ture due to chance or is tech­nic­ally un­avoid­able;

g.³⁴

acts un­der­taken as part of a med­ic­al activ­ity con­cern­ing an in­di­vidu­al per­son or an­im­al and in­volving a medi­cin­al product, in par­tic­u­lar the pre­scrib­ing, dis­pens­ing or use of medi­cin­al products by leg­ally au­thor­ised per­sons;

h.³⁵

the dir­ect in­di­vidu­al pre­par­a­tion of medi­cin­al products in phar­ma­cies in ac­cord­ance with a doc­tor’s pre­scrip­tion or to acts con­cern­ing medi­cin­al products pre­pared in this way.

² Agree­ments which lim­it or re­voke the powers con­tained in para­graph 1 are null and void.

¹ If the pro­pri­et­or of the pat­ent has placed pat­ent-pro­tec­ted goods on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, or con­sen­ted to their pla­cing on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, these goods may be im­por­ted and used or resold com­mer­cially in Switzer­land.

² If he has placed ap­par­at­us that can be used with a pat­ent-pro­tec­ted pro­cess on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, or con­sen­ted to its pla­cing on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, the first and each sub­sequent per­son who ac­quires the ap­par­at­us is en­titled to use this pro­cess.

³ If the pro­pri­et­or of the pat­ent has placed pat­ent-pro­tec­ted bio­lo­gic­al ma­ter­i­al on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, or con­sen­ted to its pla­cing on the mar­ket in Switzer­land or with­in the European Eco­nom­ic Area, this ma­ter­i­al may be im­por­ted and propag­ated in Switzer­land, provided this is ne­ces­sary for its in­ten­ded use. The ma­ter­i­al so ob­tained may not be used for fur­ther propaga­tion. Art­icle 35a re­mains re­served.

⁴ If the pro­pri­et­or of the pat­ent has placed pat­ent-pro­tec­ted goods on the mar­ket out­side the European Eco­nom­ic Area or con­sen­ted to their pla­cing on the mar­ket out­side the European Eco­nom­ic Area und if the pat­ent pro­tec­tion for the func­tion­al char­ac­ter­ist­ics of the goods is only of sub­or­din­ate im­port­ance, the goods may be im­por­ted com­mer­cially. Sub­or­din­ate im­port­ance is pre­sumed un­less the pro­pri­et­or of the pat­ent provides prima facie evid­ence to the con­trary.

⁵ Ir­re­spect­ive of the pro­vi­sions of para­graphs 1–4, the con­sent of the pro­pri­et­or of the pat­ent for the pla­cing on the mar­ket of pat­ent-pro­tec­ted goods is re­served if their price in Switzer­land or in the coun­try in which they are placed on the mar­ket is fixed by the state.

¹ Products that are pro­tec­ted by a pat­ent, or their pack­aging, may be marked as be­ing pat­en­ted with the Fed­er­al Cross and the num­ber of the pat­ent. The Fed­er­al Coun­cil may pre­scribe ad­di­tion­al in­dic­a­tions.³⁸

² The pro­pri­et­or of the pat­ent may re­quire any pri­or user or any li­censee to af­fix the pat­ent mark on the products man­u­fac­tured by them or on the pack­aging of such products.

³ If the pri­or user or li­censee does not com­ply with the re­quire­ment of the pro­pri­et­or of the pat­ent, he is li­able to the lat­ter for any res­ult­ing losses without pre­ju­dice to the pro­pri­et­or’s right to re­quire the use of the pat­ent mark.

¹ Any per­son who is­sues or of­fers for sale his busi­ness pa­pers, no­tices of any kind, products or goods bear­ing any oth­er no­tice re­fer­ring to pat­ent pro­tec­tion must in­form any third party on re­quest of the num­ber of the pat­ent ap­plic­a­tion or the pat­ent to which the no­tice refers.

² Any per­son who ac­cuses third parties of in­fringing his rights or warns them against such in­fringe­ment must, on re­quest, give them the same in­form­a­tion.

¹ Any per­son who is in­volved in ad­min­is­trat­ive pro­ceed­ings provided for in this Act and does not have a res­id­ence or prin­cip­al place of busi­ness in Switzer­land must des­ig­nate an ad­dress for ser­vice in Switzer­land un­less in­ter­na­tion­al law or the com­pet­ent for­eign body per­mits the au­thor­ity to serve doc­u­ments dir­ectly in the state con­cerned.⁴⁰. An ad­dress for ser­vice in Switzer­land is not re­quired for:⁴¹

a.

fil­ing a pat­ent ap­plic­a­tion for the pur­pose of be­ing ac­cor­ded a fil­ing date;

b.

pay­ing fees, fil­ing trans­la­tions and fil­ing and hand­ling re­quests after the grant of the pat­ent, in so far as the re­quests do not give rise to any ob­jec­tions.⁴²

^1bis The IPI is en­titled to de­clare to the com­pet­ent for­eign body that dir­ect ser­vice is per­mit­ted in Switzer­land in in­tel­lec­tu­al prop­erty mat­ters provided Switzer­land is gran­ted re­cip­roc­al rights.⁴³

² The pro­vi­sions con­cern­ing the prac­tice of the pro­fes­sion of at­tor­ney re­main re­served.

¹ The max­im­um term of the pat­ent is 20 years from the fil­ing date of the ap­plic­a­tion.⁴⁴

² …⁴⁵

¹ The pat­ent lapses:

a.

if the pro­pri­et­or sur­renders it by writ­ten de­clar­a­tion to the IPI;

b.

if a re­new­al fee that has be­come due is not paid with­in the pre­scribed time.⁴⁶

² …⁴⁷

Pat­ent ap­plic­ants or pro­pri­et­ors who are Swiss na­tion­als may rely on the pro­vi­sions of the bind­ing text for Switzer­land of the Par­is Con­ven­tion for the Pro­tec­tion of In­dus­tri­al Prop­erty of 20 March 1883,⁴⁹ where those pro­vi­sions are more fa­vour­able than the pro­vi­sions of this Act.

¹ Where an in­ven­tion is the sub­ject of a reg­u­lar fil­ing of an ap­plic­a­tion for a pat­ent for an in­ven­tion, a util­ity mod­el or an in­vent­or's cer­ti­fic­ate, and where the fil­ing takes place in or with ef­fect in a coun­try that is a party to the Par­is Con­ven­tion for the Pro­tec­tion of In­dus­tri­al Prop­erty of 20 March 1883⁵¹ or the Agree­ment Es­tab­lish­ing the World Trade Or­gan­iz­a­tion of 15 April 1994⁵², (Ap­pendix 1C, Agree­ment on Trade-Re­lated As­pects of In­tel­lec­tu­al Prop­erty Rights), it shall give rise to a right of pri­or­ity in ac­cord­ance with Art­icle 4 of the Par­is Con­ven­tion. This right may be claimed for a pat­ent ap­plic­a­tion filed in Switzer­land for the same in­ven­tion with­in 12 months from the date of the first fil­ing.⁵³

^1bis The first fil­ing in a coun­try that grants re­cipro­city to Switzer­land has the same ef­fect as the first fil­ing in a coun­try that is party to the Par­is Con­ven­tion for the Pro­tec­tion of In­dus­tri­al Prop­erty.⁵⁴

^1ter Ex­cept as oth­er­wise provided by this Act or by the Or­din­ance, para­graph 1 above and Art­icle 4 of the Par­is Con­ven­tion for the Pro­tec­tion of In­dus­tri­al Prop­erty of 20 March 1883 ap­ply by ana­logy to a first fil­ing in Switzer­land.⁵⁵

² The ef­fect of the pri­or­ity right is that the ap­plic­a­tion may not be pre­ju­diced by any cir­cum­stances that have aris­en since the date of the first fil­ing.⁵⁶

³ …⁵⁷

¹ …⁵⁹

² The right of pri­or­ity may be claimed by the first ap­plic­ant or the per­son who has ac­quired the right be­long­ing to the first ap­plic­ant to file a pat­ent ap­plic­a­tion in Switzer­land for the same in­ven­tion.⁶⁰

³ If the first fil­ing, the fil­ing in Switzer­land or both were ef­fected by a per­son who was not en­titled to the grant of the pat­ent, the en­titled per­son may claim the pri­or­ity de­riv­ing from that first fil­ing.⁶¹

¹ Any per­son claim­ing a right of pri­or­ity must file a de­clar­a­tion of pri­or­ity and a pri­or­ity doc­u­ment with the IPI.

² The right of pri­or­ity is for­feited if the time lim­its and form­al re­quire­ments laid down by the Or­din­ance are not com­plied with.

¹ Ac­cept­ance of a pri­or­ity claim in the pro­ced­ure for the grant of the pat­ent does not re­lieve the pro­pri­et­or of the pat­ent of the ob­lig­a­tion to prove the ex­ist­ence of such right in the case of leg­al pro­ceed­ings.

² The fil­ing on the basis of which pri­or­ity is claimed is pre­sumed to be the first fil­ing (Art­icle 17 para. 1 and 1^bis).⁶³

Where an in­vent­or or his suc­cessor in title has ob­tained two pat­ents with the same fil­ing date or pri­or­ity date for the same in­ven­tion, the ef­fects of the pat­ent based on the earli­er ap­plic­a­tion cease in­so­far as the scope of pro­tec­tion af­forded by the two pat­ents is the same.

¹ The pro­pri­et­or of the pat­ent may par­tially sur­render the pat­ent by re­quest­ing the IPI to:

a.

re­voke a pat­ent claim (Art. 51 and 55); or

b.

lim­it an in­de­pend­ent claim by com­bin­ing one or more pat­ent claims, which are de­pend­ent on it; or

c.

lim­it an in­de­pend­ent claim in some oth­er way; in such cases, the lim­ited claim must refer to the same in­ven­tion and define an em­bod­i­ment that is in­cluded in the spe­cific­a­tion of the pub­lished pat­ent and in the ver­sion of the pat­ent ap­plic­a­tion that de­term­ined the date of fil­ing.

² …⁶⁷

¹ If, as a res­ult of a par­tial sur­render, pat­ent claims re­main that may not ex­ist in the same pat­ent in ac­cord­ance with Art­icles 52 and 55, the pat­ent shall be lim­ited ac­cord­ingly.

² The pro­pri­et­or of the pat­ent may ap­ply for the is­sue of one or more new pat­ents to cov­er the dropped pat­ent claims; such new pat­ents are giv­en the fil­ing date of the ori­gin­al pat­ent.

³ Fol­low­ing re­gis­tra­tion of the par­tial sur­render in the Pat­ent Re­gister, the IPI shall set a time lim­it for the pro­pri­et­or of the pat­ent to ap­ply for the is­sue of new pat­ents in ac­cord­ance with para­graph 2; after this time lim­it has ex­pired, an ap­plic­a­tion is no longer ac­cep­ted.

¹ The court shall, on ap­plic­a­tion, de­clare the nullity of the pat­ent if:

a.

the sub­ject-mat­ter of the pat­ent is not pat­entable un­der Art­icles 1, 1a, 1b and 2;

b.

the in­ven­tion is not de­scribed in the pat­ent spe­cific­a­tion in a man­ner suf­fi­ciently clear and pre­cise for it to be car­ried out by a per­son skilled in the art;

c.

the sub­ject-mat­ter of the pat­ent goes bey­ond the con­tent of the pat­ent ap­plic­a­tion in the ver­sion that de­term­ined the fil­ing date;

d.

the pro­pri­et­or of the pat­ent is neither the in­vent­or nor his suc­cessor in title, nor has a right to the grant of the pat­ent on oth­er leg­al grounds.⁶⁹

² Where a pat­ent is gran­ted with re­cog­ni­tion of pri­or­ity, and the ap­plic­a­tion claim­ing the pri­or­ity does not lead to a pat­ent, the court may re­quire the pro­pri­et­or of the pat­ent to state the grounds and to present evid­ence; if the in­form­a­tion is with­held, the court has full dis­cre­tion in its judg­ment of this.⁷⁰

¹ Where a ground for nullity ap­plies to only a part of the pat­en­ted in­ven­tion, the court shall lim­it the pat­ent ac­cord­ingly.

² The court shall give the parties an op­por­tun­ity to be heard on the pro­posed new ver­sion of the pat­ent claim; it may also re­quest the opin­ion of the IPI.

³ Art­icle 25 ap­plies by ana­logy.

Any per­son with a proven in­terest may bring a nullity ac­tion, with the ex­cep­tion of an ac­tion un­der Art­icle 26 para­graph 1 let­ter d, which may be brought only by an en­titled per­son.

The ef­fects of the gran­ted pat­ent shall be deemed not to have oc­curred from the out­set in­so­far as the pro­pri­et­or of the pat­ent sur­renders the pat­ent or the court de­clares the nullity of the pat­ent based on a nullity ac­tion.

¹ When the pat­ent ap­plic­a­tion has been filed by an ap­plic­ant who, un­der Art­icle 3, is not en­titled to the grant of the pat­ent, the en­titled per­son may ap­ply for as­sign­ment of the pat­ent ap­plic­a­tion or, if the pat­ent has already been gran­ted, he may ap­ply for as­sign­ment of the pat­ent or file an ac­tion for nullity.

² …⁷³

³ If an as­sign­ment is ordered, li­cences or oth­er rights gran­ted to third parties in the in­ter­ven­ing peri­od lapse; however, if they have used the in­ven­tion com­mer­cially in Switzer­land in good faith or have made spe­cial pre­par­a­tions to do so, these third parties are en­titled to be gran­ted a non-ex­clus­ive li­cence.⁷⁴

⁴ Any claims for dam­ages are re­served.

⁵ Art­icle 40e ap­plies by ana­logy.⁷⁵

¹ If the plaintiff can­not prove his right to all claims of the pat­ent, as­sign­ment of the pat­ent ap­plic­a­tion or of the pat­ent shall be sub­ject to the de­le­tion of the pat­ent claims to which the plaintiff has not proved his right.⁷⁶

² Art­icle 25 ap­plies by ana­logy.

¹ An ac­tion for as­sign­ment must be filed with­in two years from the of­fi­cial date of the pub­lic­a­tion of the pat­ent spe­cific­a­tion.

² An ac­tion against a de­fend­ant act­ing in bad faith has no fil­ing dead­line.

¹ Where pub­lic in­terest so dic­tates, the Fed­er­al Coun­cil may ex­pro­pri­ate all or part of the pat­ent.

² The former pro­pri­et­or of an ex­pro­pri­ated pat­ent is en­titled to full com­pens­a­tion which, in the event of any dis­pute, is fixed by the Fed­er­al Su­preme Court; the pro­vi­sions of Sec­tion II of the Com­puls­ory Pur­chase Act of 20 June 1930⁷⁷ ap­ply by ana­logy.

¹ The right to the grant of the pat­ent and the right to the pat­ent passes to the heirs; these rights may be as­signed to third parties either wholly or in part.

² Where the said rights are owned by two or more per­sons, each en­titled per­son may ex­er­cise the rights only with the con­sent of the oth­ers; however, each one may in­de­pend­ently dis­pose of his part or bring an ac­tion for in­fringe­ment of the pat­ent.

^2bis The trans­fer of a pat­ent ap­plic­a­tion and of the pat­ent by leg­al act is val­id only if evid­enced in writ­ing.⁷⁸

³ A pat­ent may be trans­ferred without the trans­fer be­ing re­cor­ded in the Pat­ent Re­gister; however, un­til an entry is made, any ac­tion provided for in this Act may be taken against the former pro­pri­et­or of the pat­ent.

⁴ Rights of third parties not re­cor­ded in the Pat­ent Re­gister are in­val­id against per­sons who have ac­quired the rights to the pat­ent in good faith.

¹ The pat­ent ap­plic­ant or the pro­pri­et­or of the pat­ent may grant third parties the right to use the in­ven­tion (grant of li­cences).

² Where the pat­ent ap­plic­a­tion or the pat­ent is owned by two or more per­sons, a li­cence may not be gran­ted without the con­sent of all en­titled per­sons.

³ Li­cences of third parties not re­cor­ded in the Pat­ent Re­gister are in­val­id against per­sons who have ac­quired in good faith the rights to the pat­ent.

¹ A pat­ent may not be in­voked against any per­son who, pri­or to the fil­ing or pri­or­ity date of the pat­ent ap­plic­a­tion, was com­mer­cially us­ing the in­ven­tion in good faith in Switzer­land or had made spe­cial pre­par­a­tions for that pur­pose.⁷⁹

² Any such per­son un­der para­graph 1 may use the in­ven­tion for the pur­poses of their trade or busi­ness; this right may be trans­ferred or be­queathed only to­geth­er with the trade or busi­ness.

³ A pat­ent has no ef­fect with re­gard to vehicles which are only tem­por­ar­ily in Switzer­land, nor to equip­ment at­tached to these vehicles.

¹ Farm­ers who have ac­quired plant re­pro­duc­tion ma­ter­i­al placed on the mar­ket by the pro­pri­et­or of the pat­ent or with his con­sent may re­pro­duce, on their own farm, the product from this ma­ter­i­al cul­tiv­ated on their own farm.

² Farm­ers who have ac­quired an­im­al re­pro­duct­ive ma­ter­i­al or an­im­als placed on the mar­ket by the pro­pri­et­or of the pat­ent or with his con­sent may re­pro­duce, on their own farm, the an­im­als ob­tained through re­pro­duc­tion of this ma­ter­i­al or these an­im­als on their own farm.

³ Farm­ers are re­quired to ob­tain the con­sent of the pro­pri­et­or of the pat­ent when they wish to give the product of their har­vest or the an­im­al or an­im­al re­pro­duct­ive ma­ter­i­al ob­tained to third parties for re­pro­duc­tion pur­poses.

⁴ Con­trac­tu­al agree­ments which lim­it or re­voke the farm­ers’ priv­ilege in the area of food and feed pro­duc­tion are null and void.

The Fed­er­al Coun­cil de­term­ines the plant spe­cies in­cluded un­der the farm­ers’ priv­ilege; in so do­ing, it shall in par­tic­u­lar take in­to con­sid­er­a­tion their im­port­ance as raw ma­ter­i­als for food and feed.

¹ If a pat­en­ted in­ven­tion can­not be used without in­fringing a pri­or pat­ent, the pro­pri­et­or of the later pat­ent has the right to a non-ex­clus­ive li­cence to the ex­tent re­quired to use his in­ven­tion, provided that the in­ven­tion rep­res­ents an im­port­ant tech­nic­al ad­vance of con­sid­er­able eco­nom­ic sig­ni­fic­ance in re­la­tion to the in­ven­tion that is the sub­ject-mat­ter of the pri­or pat­ent.

² A li­cence to use the in­ven­tion that is the sub­ject-mat­ter of the pri­or pat­ent may only be trans­ferred jointly with the later pat­ent.

³ The pro­pri­et­or of the pri­or pat­ent may make the grant of a li­cence con­di­tion­al on the pro­pri­et­or of the later pat­ent grant­ing him a li­cence to use his in­ven­tion in re­turn.

¹ When a plant vari­ety right may not be claimed or used without in­fringing an earli­er-gran­ted pat­ent, the plant breed­er or the own­er of the plant vari­ety has the right to a non-ex­clus­ive li­cence to the ex­tent re­quired to ob­tain and use his plant vari­ety right, provided that the plant vari­ety rep­res­ents an im­port­ant ad­vance of con­sid­er­able eco­nom­ic sig­ni­fic­ance in com­par­is­on to the pat­ent-pro­tec­ted in­ven­tion. For vari­et­ies for ag­ri­cul­ture and food, the cri­ter­ia un­der the Seed Or­din­ance of 7 Decem­ber 1998⁸⁵ serve as a ref­er­ence point.

² The pro­pri­et­or of the pat­ent may make the grant of a li­cence con­di­tion­al on the own­er of the plant vari­ety grant­ing him a li­cence to use his plant vari­ety right in re­turn.

¹ Three years from the date of the grant of the pat­ent, or at the earli­est four years after fil­ing the pat­ent ap­plic­a­tion, any per­son with a le­git­im­ate in­terest may ap­ply to the court for the grant of a non-ex­clus­ive li­cence to use the in­ven­tion if the pro­pri­et­or of the pat­ent has not suf­fi­ciently ex­ploited it in Switzer­land by the time of the ac­tion and can­not jus­ti­fy such a fail­ure. Im­port­ing is also con­sidered do­mest­ic ex­ploit­a­tion.⁸⁶

² …⁸⁷

³ At the re­quest of the plaintiff, the court may grant a li­cence im­me­di­ately after the ac­tion has been filed without pre­ju­dice to the fi­nal judg­ment provid­ing that, in ad­di­tion to the con­di­tions set out in para­graph 1, the plaintiff provides prima facieevid­ence that he has an in­terest in the im­me­di­ate use of the in­ven­tion and that he provides ad­equate se­cur­ity to the de­fend­ant; the de­fend­ant shall be giv­en the op­por­tun­ity to be heard be­fore­hand.⁸⁸

¹ If the grant of li­cences does not suf­fice to meet the de­mand of the do­mest­ic mar­ket, any per­son with a proven in­terest may bring an ac­tion for the can­cel­la­tion of the pat­ent after a peri­od of two years from the grant of the first li­cence un­der Art­icle 37 para­graph 1.

² If the le­gis­la­tion of the coun­try of which the pro­pri­et­or of the pat­ent is a na­tion­al or in which he is res­id­ent al­lows an ac­tion for can­cel­la­tion of the pat­ent for fail­ure to ex­ploit the in­ven­tion in that coun­try as early as three years after the grant of the pat­ent, such an ac­tion shall be al­lowed in­stead of the ac­tion for the grant of a li­cence, sub­ject to the con­di­tions spe­cified in Art­icle 37 for the grant of li­cences.⁸⁹

The Fed­er­al Coun­cil may de­cree Art­icles 37 and 38 to be in­ap­plic­able with re­gard to na­tion­als of coun­tries grant­ing re­cipro­city.

¹ Where pub­lic in­terest so dic­tates, the per­son to whom the pro­pri­et­or of the pat­ent has, without suf­fi­cient reas­on, re­fused to grant the li­cence re­ques­ted, may ap­ply to the court for the grant of a li­cence to use the in­ven­tion.⁹⁰

² …⁹¹

For in­ven­tions in the field of semi-con­duct­or tech­no­logy, a non-ex­clus­ive li­cence may only be gran­ted to rem­edy a prac­tice held to be anti-com­pet­it­ive in court or ad­min­is­trat­ive pro­ceed­ings.

Any per­son who in­tends to use a pat­en­ted bi­o­tech­no­lo­gic­al in­ven­tion as an in­stru­ment or means for re­search is en­titled to a non-ex­clus­ive li­cence.

For in­ven­tions con­cern­ing a dia­gnost­ic product or pro­ced­ure for hu­mans, a non-ex­clus­ive li­cence shall be gran­ted to rem­edy a prac­tice held to be anti-com­pet­it­ive in court or ad­min­is­trat­ive pro­ceed­ings.

¹ Any per­son may bring an ac­tion be­fore the court to be gran­ted a non-ex­clus­ive li­cence for the man­u­fac­ture of pat­ent-pro­tec­ted phar­ma­ceut­ic­al products and for their ex­port to a coun­try that has in­suf­fi­cient or no pro­duc­tion ca­pa­city of its own in the phar­ma­ceut­ic­al sec­tor and which re­quires these products to com­bat pub­lic health prob­lems, in par­tic­u­lar those re­lated to HIV/AIDS, tuber­cu­los­is, mal­aria and oth­er epi­dem­ics (be­ne­fi­ciary coun­try).

² Coun­tries that have de­clared in the World Trade Or­gan­iz­a­tion (WTO) that they wholly or partly re­nounce their claim to a li­cence in ac­cord­ance with para­graph 1 are ex­cluded from be­ing be­ne­fi­ciary coun­tries in ac­cord­ance with the terms of their de­clar­a­tion. All oth­er coun­tries that ful­fil the re­quire­ments of para­graph 1 may be be­ne­fi­ciary coun­tries.

³ The li­cence in ac­cord­ance with para­graph 1 is lim­ited to the pro­duc­tion of the phar­ma­ceut­ic­al product in the quant­ity that meets the re­quire­ments of the be­ne­fi­ciary coun­try; the total quant­ity must be ex­por­ted to the be­ne­fi­ciary coun­try.

⁴ The own­er of the li­cence in ac­cord­ance with para­graph 1, as well as any man­u­fac­turer that pro­duces products un­der li­cence, must en­sure that they are clearly iden­ti­fied as products that have been pro­duced un­der a li­cence in ac­cord­ance with para­graph 1, and that the products are dis­tin­guished by their pack­aging or by their spe­cial col­our­ing or shape from pat­ent-pro­tec­ted products, provided this does not have a sig­ni­fic­ant im­pact on the price of the products in the be­ne­fi­ciary coun­try.

⁵ The Fed­er­al Coun­cil shall reg­u­late the re­quire­ments for the grant of li­cences in ac­cord­ance with para­graph 1. In par­tic­u­lar, it shall stip­u­late the in­form­a­tion or no­ti­fic­a­tions the re­spons­ible court must pos­sess in or­der to be able to de­cide on the grant of the li­cence in ac­cord­ance with para­graph 1, and shall reg­u­late the meas­ures in ac­cord­ance with para­graph 4.

¹ The li­cences provided for in Art­icles 36–40dare gran­ted only if ef­forts by the ap­plic­ant to ob­tain a con­trac­tu­al li­cence on ap­pro­pri­ate mar­ket terms with­in a reas­on­able peri­od of time have been un­suc­cess­ful; in the case of a li­cence in ac­cord­ance with Art­icle 40d, a peri­od of 30 work­ing days is re­garded as reas­on­able. Such ef­forts are not re­quired in situ­ations of na­tion­al emer­gency or oth­er cir­cum­stances of ex­treme ur­gency or in cases of pub­lic non-com­mer­cial use.

² The scope and term of the li­cence are lim­ited to the pur­pose for which it has been gran­ted.

³ The li­cence may only be trans­ferred with that part of the en­ter­prise which uses the li­cence. This also ap­plies to sub-li­cences.

⁴ The li­cence is primar­ily gran­ted for sup­ply­ing the do­mest­ic mar­ket. Art­icle 40d re­mains re­served.

⁵ The pro­pri­et­or of the pat­ent has the right to ap­pro­pri­ate re­mu­ner­a­tion. In as­sess­ing the re­mu­ner­a­tion, the cir­cum­stances of the in­di­vidu­al case and the eco­nom­ic value of the li­cence are taken in­to ac­count. In the case of a li­cence un­der Art­icle 40d, the re­mu­ner­a­tion is de­term­ined by tak­ing in­to ac­count the eco­nom­ic value of the li­cence in the im­port­ing coun­try, its level of de­vel­op­ment and the ur­gency in pub­lic health and hu­man­it­ari­an terms. The Fed­er­al Coun­cil shall spe­cify the meth­od of cal­cu­la­tion.

⁶ The court shall de­cide on the grant and re­voc­a­tion of li­cences, on their scope and dur­a­tion as well as on the re­mu­ner­a­tion pay­able. In par­tic­u­lar, it shall re­voke an en­titled per­son’s li­cence on re­quest if the cir­cum­stances that led to its be­ing gran­ted no longer ap­ply and it is not ex­pec­ted that they will arise again. Ap­pro­pri­ate pro­tec­tion of the leg­al in­terests of the en­titled per­son re­mains re­served. Where a li­cence is gran­ted un­der Art­icle 40d, leg­al rem­ed­ies have no sus­pens­ive ef­fect.

The ob­tain­ment and main­ten­ance of a pat­ent and the pro­cessing of spe­cial re­quests are sub­ject to the pay­ment of the rel­ev­ant fees pre­scribed in the Or­din­ance.

¹ If the pat­ent ap­plic­ant or the pro­pri­et­or of the pat­ent fails to ob­serve a time lim­it pre­scribed by le­gis­la­tion or a time lim­it set by the IPI, he may file a re­quest for fur­ther pro­cessing with the IPI.¹⁰³

² He must file the re­quest with­in two months of re­ceiv­ing no­tice from the IPI of fail­ure to ob­serve the time lim­it, and six months at the latest from the ex­piry of the said time lim­it.¹⁰⁴ He must also carry out in full, with­in these time lim­its, the omit­ted act, sup­ple­ment where ne­ces­sary the pat­ent ap­plic­a­tion and pay the fee for fur­ther pro­cessing.

³ Ac­cept­ance of the re­quest for fur­ther pro­cessing has the ef­fect of restor­ing the situ­ation that would have res­ul­ted from car­ry­ing out the act in good time. Art­icle 48 re­mains re­served.

⁴ Fur­ther pro­cessing is ruled out in the case of fail­ure to ob­serve:

a.

time lim­its that do not have to be ob­served vis-à-vis the IPI;

b.

time lim­its for fil­ing a re­quest for fur­ther pro­cessing (para. 2);

c.

time lim­its for fil­ing a re­quest for re-es­tab­lish­ment of rights (Art. 47 para. 2);

d.

time lim­its for fil­ing a pat­ent ap­plic­a­tion ac­com­pan­ied by a claim for the right of pri­or­ity and for the de­clar­a­tion of pri­or­ity (Art. 17 and 19);

e.¹⁰⁵

…

f.

the time lim­it for the modi­fic­a­tion of tech­nic­al doc­u­ments (Art. 58 para. 1);

g.¹⁰⁶

…

h.¹⁰⁷

time lim­its for ap­ply­ing for the grant of a sup­ple­ment­ary pro­tec­tion cer­ti­fic­ate (Art. 140f para. 1, Art. 146 para. 2, and Art. 147 para. 3) or to ex­tend its valid­ity (Art. 140o para. 1) and to is­sue a pae­di­at­ric sup­ple­ment­ary pro­tec­tion cer­ti­fic­ate (Art. 140v para. 1);

i.

any oth­er time lim­it laid down by or­din­ance where fail­ure to com­ply with that time lim­it ex­cludes fur­ther pro­cessing.

¹ Where the pat­ent ap­plic­ant or pro­pri­et­or of the pat­ent provides prima facie evid­ence of hav­ing been pre­ven­ted, through no fault on his part, from ob­serving a time lim­it pre­scribed by this Act or the Im­ple­ment­ing Or­din­ance or one set by the IPI, he shall be gran­ted, on re­quest, the re-es­tab­lish­ment of his rights.

² The re­quest shall be filed with the au­thor­ity for which the act should have been car­ried out with­in two months of the re­mov­al of the cause of non-com­pli­ance with the time lim­it, and at the latest with­in one year of ex­piry of the un­ob­served time lim­it; at the same time, the omit­ted act must be car­ried out.

³ Re-es­tab­lish­ment of rights shall be ruled out in re­spect of para­graph 2 above (time lim­it for the re­quest for re-es­tab­lish­ment of rights).

⁴ Ac­cept­ance of the re­quest shall have the ef­fect of restor­ing the situ­ation that would have res­ul­ted from car­ry­ing out the act in good time; Art­icle 48 shall re­main re­served.

¹ The pat­ent may not be in­voked against any per­son who, dur­ing the fol­low­ing peri­ods, has com­mer­cially used an in­ven­tion in good faith in Switzer­land or who has made spe­cial pre­par­a­tions for that pur­pose:

a.

between the last day of the time lim­it stip­u­lated for pay­ment of a pat­ent re­new­al fee (…¹¹⁰) and the day on which a re­quest for fur­ther pro­cessing (Art. 46a) or a re­quest for re-es­tab­lish­ment of rights (Art. 47) was filed;

b.

between the last day of the pri­or­ity peri­od (Art. 17 para. 1) and the day on which the pat­ent ap­plic­a­tion was filed.¹¹¹

² This pri­or user right is gov­erned by Art­icle 35 para­graph 2.

³ Any per­son claim­ing a pri­or user right based on para­graph 1 let­ter a must pay the pro­pri­et­or of the pat­ent ap­pro­pri­ate com­pens­a­tion from the date on which the pat­ent is re­vived.

⁴ In the event of dis­pute, the court shall de­cide on the ex­ist­ence and on the ex­tent of the rights claimed by pri­or use and on the amount of com­pens­a­tion to be paid in ac­cord­ance with para­graph 3.

¹ There is no ob­lig­a­tion to be rep­res­en­ted be­fore the ad­min­is­trat­ive au­thor­it­ies in pro­ceed­ings un­der this Act.

² Any party who does not want to rep­res­ent him­self in pro­ceed­ings un­der this Act be­fore the ad­min­is­trat­ive au­thor­it­ies must be rep­res­en­ted by a rep­res­ent­at­ive with an ad­dress for ser­vice in Switzer­land.

Art­icle 13 of the Pat­ent At­tor­ney Act of 20 March 2009¹¹³ ap­plies by ana­logy to rep­res­ent­at­ives who are not re­gistered in the Pat­ent At­tor­ney Re­gister.

¹ Any per­son who wishes to ob­tain a pat­ent for an in­ven­tion must file a pat­ent ap­plic­a­tion with the IPI.

² The pat­ent ap­plic­a­tion must con­tain:

a.

a re­quest for the grant of a pat­ent;

b.¹¹⁵a de­scrip­tion of the in­ven­tion and, where a claim is made for a se­quence de­rived from a se­quence or par­tial se­quence of a gene, a spe­cif­ic de­scrip­tion of the func­tion it per­forms;

c.

one or more pat­ent claims;

d.

the draw­ings to which the de­scrip­tion or claims of the pat­ent refer;

e.

an ab­stract.¹¹⁶

³ …¹¹⁷

¹ The pat­ent ap­plic­a­tion must con­tain in­form­a­tion on the source:

a.

of the ge­net­ic re­source to which the in­vent­or or the pat­ent ap­plic­ant had ac­cess, provided the in­ven­tion is dir­ectly based on this re­source;

b.

of tra­di­tion­al know­ledge of in­di­gen­ous or loc­al com­munit­ies of ge­net­ic re­sources to which the in­vent­or or the pat­ent ap­plic­ant had ac­cess, provided the in­ven­tion is dir­ectly based on this know­ledge.

² If the source is un­known to the in­vent­or or the pat­ent ap­plic­ant, the pat­ent ap­plic­ant must con­firm this in writ­ing.

¹ The in­ven­tion must be de­scribed in the pat­ent ap­plic­a­tion in such a man­ner that it can be car­ried out by a per­son skilled in the art.¹²⁰

² …¹²¹

¹ If an in­ven­tion that relates to the man­u­fac­ture or use of bio­lo­gic­al ma­ter­i­al can­not be suf­fi­ciently de­scribed, then the de­scrip­tion must be com­pleted by de­pos­it­ing a sample of the bio­lo­gic­al ma­ter­i­al and, in the de­scrip­tion, by provid­ing de­tails of the es­sen­tial char­ac­ter­ist­ics of the bio­lo­gic­al ma­ter­i­al as well as a ref­er­ence to the de­pos­it.

² If, in the case of an in­ven­tion that relates to bio­lo­gic­al ma­ter­i­al as a product, the pro­duc­tion pro­cess can­not be suf­fi­ciently de­scribed, then the de­scrip­tion must be com­pleted or re­placed by de­pos­it­ing a sample of the bio­lo­gic­al ma­ter­i­al and, in the de­scrip­tion, by a ref­er­ence to the de­pos­it.

³ The in­ven­tion is deemed to be dis­closed in ac­cord­ance with Art­icle 50 only if the sample of the bio­lo­gic­al ma­ter­i­al has been de­pos­ited at the latest on the fil­ing date with a re­cog­nised de­pos­it­ary in­sti­tu­tion and the pat­ent ap­plic­a­tion as ori­gin­ally filed con­tains de­tails of the bio­lo­gic­al ma­ter­i­al and ref­er­ence to its de­pos­it.

⁴ The Fed­er­al Coun­cil shall reg­u­late in de­tail the re­quire­ments for de­pos­it­ing samples, for the de­tails of bio­lo­gic­al ma­ter­i­al and for the ref­er­ence to the de­pos­it, to­geth­er with ac­cess to the samples de­pos­ited.

¹ The in­ven­tion must be defined in one or more pat­ent claims.

² The claims of the pat­ent shall de­term­ine the scope of pro­tec­tion con­ferred by the pat­ent.

³ The de­scrip­tion and draw­ings must be used to in­ter­pret the pat­ent claims.

¹ Each in­de­pend­ent claim may define one in­ven­tion only, namely:

a.

a pro­cess; or

b.

a product, a means for per­form­ing a pro­cess or an ap­par­at­us; or

c.

an ap­plic­a­tion of a pro­cess; or

d.

a use for a product.

² A pat­ent may con­tain sev­er­al in­de­pend­ent claims when they define a set of in­ven­tions that are linked to each oth­er in such a way that they con­sti­tute a single over­all in­vent­ive concept.

Spe­cial em­bod­i­ments defined by an in­de­pend­ent claim may be the sub­ject of de­pend­ent claims.

The ab­stract serves the sole pur­pose of provid­ing tech­nic­al in­form­a­tion.

¹ The date of fil­ing is the day on which the last of the fol­low­ing items are filed:

a.

an ex­press or im­plied ap­plic­a­tion for the grant of a pat­ent;

b.

in­form­a­tion al­low­ing the iden­tity of the pat­ent ap­plic­ant to be es­tab­lished;

c.

an item which ap­pears to be a de­scrip­tion.¹³⁰

² For pos­ted ap­plic­a­tions, the date of fil­ing is the day on which it was giv­en to the Swiss postal ser­vice for de­liv­ery to the IPI.¹³¹

³ The Fed­er­al Coun­cil shall reg­u­late the par­tic­u­lars, in par­tic­u­lar the lan­guage in which the items un­der para­graph 1 must be filed, the date of fil­ing and pub­lic­a­tion, wheth­er a miss­ing part of the de­scrip­tion or the draw­ing may be filed af­ter­wards, as well as the re­place­ment of the de­scrip­tion or the draw­ings with a ref­er­ence to a pat­ent ap­plic­a­tion filed earli­er¹³².

¹ A pat­ent ap­plic­a­tion res­ult­ing from the di­vi­sion of an earli­er ap­plic­a­tion shall be giv­en the same fil­ing date as the earli­er ap­plic­a­tion:

a.

if, at the time of its fil­ing, it is ex­pressly des­ig­nated as be­ing a di­vi­sion­al ap­plic­a­tion;

b.

if, at the time of fil­ing of the di­vi­sion­al ap­plic­a­tion, the earli­er ap­plic­a­tion was still pending; and

c.

in­so­far as its sub­ject-mat­ter does not ex­tend bey­ond the con­tent of the earli­er ap­plic­a­tion as ori­gin­ally filed.

² …¹³⁴

¹ Un­til the ex­am­in­a­tion pro­ced­ure has been com­pleted, the pat­ent ap­plic­ant must be giv­en the op­por­tun­ity to modi­fy the tech­nic­al doc­u­ments on at least one oc­ca­sion.

² The tech­nic­al doc­u­ments may not be mod­i­fied such that the sub­ject-mat­ter of the mod­i­fied pat­ent ap­plic­a­tion ex­tends bey­ond the con­tent of the tech­nic­al doc­u­ments ori­gin­ally filed.

¹ The In­sti­tute shall pub­lish pat­ent ap­plic­a­tions:

a.

im­me­di­ately after the ex­piry of a peri­od of 18 months from the fil­ing date or, if pri­or­ity has been claimed, from the pri­or­ity date;

b.

at the re­quest of the ap­plic­ant, be­fore the ex­piry of the peri­od spe­cified in let­ter a.

² The pub­lic­a­tion shall con­tain the de­scrip­tion, the pat­ent claims and, if ap­plic­able, the draw­ings, as well as the ab­stract, provided it is avail­able for pub­lic­a­tion pri­or to com­ple­tion of the tech­nic­al pre­par­a­tions for pub­lic­a­tion, and if ap­plic­able, the re­port on the state of the art or the in­ter­na­tion­al-type search as spe­cified in Art­icle 59 para­graph 5. If the re­port on the state of the art or the in­ter­na­tion­al-type search as spe­cified in Art­icle 59 para­graph 5 is not pub­lished with the pat­ent ap­plic­a­tion, they shall be pub­lished sep­ar­ately.

¹ If the sub­ject-mat­ter of the pat­ent ap­plic­a­tion does not fall with­in Art­icles 1, 1a, 1b and 2 or does so only in part, the IPI shall in­form the pat­ent ap­plic­ant ac­cord­ingly, stat­ing the reas­ons, and shall set him a time lim­it with­in which to re­spond.¹³⁸

² If the pat­ent ap­plic­a­tion does not meet the oth­er re­quire­ments of this Act or the Or­din­ance, the IPI shall set a time lim­it for the pat­ent ap­plic­ant by which the de­fi­cien­cies must be remedied.¹³⁹

³ …¹⁴⁰

⁴ The In­sti­tute shall not ex­am­ine wheth­er the in­ven­tion is new or wheth­er it is ob­vi­ous hav­ing re­gard to the state of the art.¹⁴¹

⁵ In re­turn for the pay­ment of a fee, the ap­plic­ant may:

a.

in­struct the IPI to provide a re­port on the state of the art with­in 14 months of the fil­ing date, or, if pri­or­ity has been claimed, of the pri­or­ity date; or

b.

re­quest the IPI to ar­range an in­ter­na­tion­al-type search with­in 6 months of the fil­ing date of a first fil­ing.¹⁴²

⁶ If no cla­ri­fic­a­tion has been car­ried out in ac­cord­ance with para­graph 5, any per­son en­titled to in­spect the dossier in ac­cord­ance with Art­icle 65 may, in re­turn for the pay­ment of a fee, in­struct the IPI to provide a re­port on the state of the art.¹⁴³

¹ If the re­quire­ments for the grant of a pat­ent are ful­filled, the IPI shall in­form the pat­ent ap­plic­ant that the ex­am­in­a­tion pro­ced­ure has been com­pleted.

² …¹⁴⁵

³ The In­sti­tute shall re­ject the pat­ent ap­plic­a­tion if:

a.

the ap­plic­a­tion has not been with­drawn even though a pat­ent may not be gran­ted for the reas­ons stated in Art­icle 59 para­graph 1; or

b.

the de­fi­cien­cies men­tioned in Art­icle 59 para­graph 2 have not been remedied.

¹ With­in nine months of the pub­lic­a­tion of the entry in the Pat­ent Re­gister, any per­son may give no­tice of op­pos­i­tion to the IPI to a pat­ent which has been gran­ted by the lat­ter. The no­tice of op­pos­i­tion must be filed in a writ­ten reasoned state­ment.

² Op­pos­i­tion may only be filed on the grounds that the sub­ject-mat­ter of the pat­ent is not pat­entable un­der Art­icles 1a, 1b and 2.

³ If the IPI finds in fa­vour of the op­pos­i­tion in its en­tirety or in part, it may re­voke the pat­ent or main­tain it as amended. The de­cision re­gard­ing an op­pos­i­tion is sub­ject to ap­peal to the Fed­er­al Ad­min­is­trat­ive Court.

⁴ The Fed­er­al Coun­cil shall reg­u­late the par­tic­u­lars, in par­tic­u­lar the pro­ced­ure.

¹ The In­sti­tute shall grant the pat­ent by re­gis­ter­ing it in the Pat­ent Re­gister.¹⁵⁰

^1bis The Pat­ent Re­gister shall, in par­tic­u­lar, con­tain the fol­low­ing par­tic­u­lars: num­ber of the pat­ent, clas­si­fic­a­tion sym­bol, title of the in­ven­tion, date of fil­ing, name and dom­i­cile of the pro­pri­et­or of the pat­ent and, where ap­plic­able, pri­or­ity data, name and busi­ness ad­dress of the rep­res­ent­at­ive and name of the in­vent­or.¹⁵¹

² Any modi­fic­a­tions con­cern­ing the valid­ity of the pat­ent or the right to the pat­ent must be entered in the Pat­ent Re­gister.

³ …¹⁵²

¹ The In­sti­tute shall pub­lish:

a.

the pat­ent ap­plic­a­tion with the par­tic­u­lars lis­ted in Art­icle 58a para­graph 2;

b.

the re­gis­tra­tion of the pat­ent in the Pat­ent Re­gister, with the par­tic­u­lars lis­ted in Art­icle 60 para­graph 1^bis;

c.

the can­cel­la­tion of the pat­ent in the Pat­ent Re­gister;

d.

any modi­fic­a­tions re­gistered in the Re­gister con­cern­ing the valid­ity of the pat­ent and the right to the pat­ent.¹⁵³

² …¹⁵⁴

³ The In­sti­tute shall de­term­ine the or­gan of pub­lic­a­tion.¹⁵⁵

¹ The In­sti­tute shall pub­lish a pat­ent spe­cific­a­tion for each pat­ent gran­ted.¹⁵⁹

² This shall con­tain the de­scrip­tion, the pat­ent claims, the ab­stract, the draw­ings if any, and the par­tic­u­lars re­cor­ded in the Re­gister (Art. 60 para. 1^bis).

¹ As soon as the pat­ent spe­cific­a­tion is ready for pub­lic­a­tion, the IPI shall is­sue a pat­ent cer­ti­fic­ate.

² This con­sists of an at­test­a­tion con­firm­ing the leg­al con­di­tions for ob­tain­ing a pat­ent have been met and a copy of the pat­ent spe­cific­a­tion.

¹ Fol­low­ing pub­lic­a­tion of the pat­ent ap­plic­a­tion, any per­son may in­spect the dossier. The Fed­er­al Coun­cil may re­strict the right of in­spec­tion only if man­u­fac­tur­ing or trade secrets or oth­er over­rid­ing in­terests so re­quire.

² The Fed­er­al Coun­cil shall reg­u­late the cases in which in­spec­tion of the dossier is per­mit­ted pri­or to the pub­lic­a­tion of the pat­ent ap­plic­a­tion. It shall also reg­u­late, in par­tic­u­lar, the in­spec­tion of pat­ent ap­plic­a­tions that were re­jec­ted or with­drawn be­fore pub­lic­a­tion.

¹ The Fed­er­al Coun­cil may au­thor­ise the IPI to reg­u­late elec­tron­ic com­mu­nic­a­tion in ac­cord­ance with the gen­er­al pro­vi­sions on the ad­min­is­tra­tion of fed­er­al justice.

² The dossier and the files may be main­tained and stored in elec­tron­ic form.

³ The Pat­ent Re­gister may be main­tained in elec­tron­ic form.

⁴ The In­sti­tute may make its data ac­cess­ible, par­tic­u­larly on­line, to third parties; it may de­mand re­mu­ner­a­tion for this ser­vice.

⁵ The In­sti­tute's pub­lic­a­tions may be pro­duced in elec­tron­ic form; the elec­tron­ic ver­sion, however, shall only be au­thor­it­at­ive if the data is pub­lished ex­clus­ively in elec­tron­ic form.

In ac­cord­ance with the fol­low­ing pro­vi­sions, the fol­low­ing per­sons may be held li­able un­der civil and crim­in­al law:

a.

any per­son who uses a pat­en­ted in­ven­tion un­law­fully; im­it­a­tion is also deemed to con­sti­tute use;

b.¹⁶³

any per­son who re­fuses to no­ti­fy the au­thor­ity con­cerned of the ori­gin and quant­ity of products in his pos­ses­sion which are un­law­fully man­u­fac­tured or placed on the mar­ket, and to name the re­cip­i­ents and dis­close the ex­tent of any dis­tri­bu­tion to com­mer­cial and in­dus­tri­al cus­tom­ers;

c.

any per­son who re­moves the pat­ent mark from products or their pack­aging without au­thor­isa­tion from the pro­pri­et­or of the pat­ent or the li­censee;

d.

any per­son who abets any of the said of­fences, par­ti­cip­ates in them, or aids or fa­cil­it­ates the per­form­ance of any of these acts.

¹ If the in­ven­tion con­cerns a pro­cess for the man­u­fac­ture of a new product, every product of the same com­pos­i­tion shall be pre­sumed to have been made by the pat­en­ted pro­cess un­til proof to the con­trary has been provided.

² Para­graph 1 ap­plies by ana­logy to a pro­cess for the man­u­fac­ture of a known product if the pro­pri­et­or of the pat­ent provides prima facie evid­ence of an in­fringe­ment of the pat­ent.

¹ The parties' man­u­fac­tur­ing or trade secrets must be safe­guarded.

² Evid­ence which would dis­close such secrets may be made avail­able to the oth­er party only to such an ex­tent as is com­pat­ible with the safe­guard­ing of the secrets.

¹ In the event of a con­vic­tion, the court may or­der the for­feit­ure and sale or de­struc­tion of the un­law­fully man­u­fac­tured products or equip­ment, devices and oth­er means that primar­ily serve their man­u­fac­ture.¹⁶⁴

² The net pro­ceeds from the sale shall firstly be used for the pay­ment of the fine, then the pay­ment of the in­vest­ig­a­tion and court costs, and fi­nally for the pay­ment of a fi­nal un­ap­peal­able award of dam­ages to the in­jured party and to cov­er their lit­ig­a­tion costs; any sur­plus shall go to the former own­er of the goods sold.

³ Even in the event of the dis­missal of the ac­tion or an ac­quit­tal, the court may or­der the de­struc­tion of the equip­ment, devices and oth­er means in­ten­ded primar­ily for the in­fringe­ment of the pat­ent.¹⁶⁵

¹ The court may au­thor­ise the suc­cess­ful party to pub­lish the judg­ment at the ex­pense of the op­pos­ing party; the court shall de­term­ine the form, ex­tent and tim­ing of the pub­lic­a­tion.

² In crim­in­al cases (Art. 81–82), pub­lic­a­tion of the judg­ment is gov­erned by Art­icle 68 of the Swiss Crim­in­al Code¹⁶⁶.¹⁶⁷

The courts shall provide the IPI with full of­fi­cial cop­ies of the fi­nal judg­ments free of charge.

Any per­son who brings an ac­tion un­der Art­icles 72, 73, 74 or 81 and sub­sequently brings a fur­ther ac­tion against the same party for the same or a sim­il­ar act on the basis of an­oth­er pat­ent must bear the court costs and the oth­er party's costs for the new pro­ced­ure if he does not provide prima facie evid­ence that in the pri­or ac­tion he was, through no fault on his part, un­able to in­voke the oth­er pat­ent.

¹ Any per­son who is threatened with or has his rights in­fringed by an act re­ferred to in Art­icle 66 may de­mand an in­junc­tion or that the un­law­ful situ­ation be remedied.

² …¹⁷⁰

¹ Any per­son who per­forms an act re­ferred to in Art­icle 66 either wil­fully or through neg­li­gence shall be re­quired to pay dam­ages to the in­jured party ac­cord­ing to the pro­vi­sions of the Code of Ob­lig­a­tions¹⁷¹.

² …¹⁷²

³ An ac­tion for dam­ages may only be brought after the pat­ent has been gran­ted; the de­fend­ant may, however, be held li­able for loss or dam­age caused from the time when he first ob­tained know­ledge of the con­tent of the pat­ent ap­plic­a­tion, but at the latest from the pub­lic­a­tion of the ap­plic­a­tion.¹⁷³

⁴ …¹⁷⁴

Any per­son demon­strat­ing an in­terest may bring an ac­tion to ob­tain a de­clar­at­ory judg­ment on the ex­ist­ence or non-ex­ist­ence of a cir­cum­stance or leg­al re­la­tion­ship gov­erned by this Act, in par­tic­u­lar:

1.

that a par­tic­u­lar pat­ent is val­id;

2.

that the de­fend­ant has per­formed an act re­ferred to in Art­icle 66;

3.

that the plaintiff has not per­formed any act re­ferred to in Art­icle 66;

4.¹⁷⁵

that a par­tic­u­lar pat­ent is not en­force­able against the plaintiff by vir­tue of a leg­al pro­vi­sion;

5.

that with re­gard to two par­tic­u­lar pat­ents, the re­quire­ments of Art­icle 36 for the grant of a li­cence are or are not ful­filled;

6.

that the plaintiff has made the in­ven­tion, which is the sub­ject-mat­ter of a par­tic­u­lar pat­ent ap­plic­a­tion or pat­ent;

7.¹⁷⁶

that a par­tic­u­lar pat­ent, which vi­ol­ates the double pat­ent­ing pro­hib­i­tion, has be­come in­val­id.

¹ Any per­son who holds an ex­clus­ive li­cence, ir­re­spect­ive of the re­gis­tra­tion of the li­cence in the Re­gister, is en­titled to bring an ac­tion as spe­cified in Art­icles 72 or 73 in­de­pend­ently, provided this is not ex­pressly ex­cluded by the li­cence agree­ment.

² Any li­censee may join an ac­tion un­der Art­icle 73 in or­der to claim their own loss or dam­ages.

¹Any per­son re­quest­ing pre­lim­in­ary meas­ures may, in par­tic­u­lar, re­quest that the court or­ders:

a.

meas­ures to se­cure evid­ence, to pre­serve the ex­ist­ing state of af­fairs or to pro­vi­sion­ally en­force claims for in­junct­ive re­lief and rem­edy;

b.

a pre­cise de­scrip­tion to be made:

1.

of the al­legedly un­law­ful pro­cesses used,

2.

of the al­legedly un­law­ful products man­u­fac­tured as well as the means used to man­u­fac­ture them; or

c.

the seizure of these ob­jects.

² If a party re­quests a de­scrip­tion to be made, it must provide prima facie evid­ence that an ex­ist­ing claim has been in­fringed or an in­fringe­ment is sus­pec­ted.

³ If the op­pos­ing party claims that a man­u­fac­tur­ing or trade secret is in­volved, the court shall take the ne­ces­sary meas­ures to safe­guard it. It may ex­clude the ap­plic­ant party from par­ti­cip­at­ing in the pro­ced­ure for mak­ing the de­scrip­tion.

⁴ The pro­ced­ure for mak­ing the de­scrip­tion, with or without seizure, shall be car­ried out by a mem­ber of the Fed­er­al Pat­ent Court, who may call on the as­sist­ance of an ex­pert if ne­ces­sary. It shall be car­ried out, where ne­ces­sary, in col­lab­or­a­tion with the com­pet­ent can­ton­al in­stances.

⁵ Be­fore the ap­plic­ant party is no­ti­fied of the de­scrip­tion, the op­pos­ing party shall be giv­en the op­por­tun­ity to com­ment.

¹ Any per­son who wil­fully com­mits an act spe­cified in Art­icle 66 is, on com­plaint by the in­jured party, li­able to a cus­todi­al sen­tence not ex­ceed­ing one year or to a mon­et­ary pen­alty.¹⁸²

² The right to file a com­plaint shall lapse after six months from the day on which the in­jured party be­came aware of the iden­tity of the of­fend­er.

³ If the of­fend­er acts for com­mer­cial gain, he shall be pro­sec­uted ex of­fi­cio. The pen­alty is a cus­todi­al sen­tence not ex­ceed­ing five years or a mon­et­ary pen­alty. …^{183 184}

¹ Any per­son who wil­fully provides false in­form­a­tion un­der Art­icle 49a is li­able to a fine of up to 100,000 francs.

² The court may or­der the pub­lic­a­tion of the judg­ment.

¹ Any per­son who wil­fully of­fers for sale or dis­trib­utes his busi­ness doc­u­ments, no­tices or ad­vert­ise­ments of any nature, products or goods bear­ing a des­ig­na­tion that cre­ates the er­ro­neous be­lief that the products or goods have pat­ent pro­tec­tion is li­able to a fine.¹⁸⁷

² The court may or­der the pub­lic­a­tion of the judg­ment.

The gen­er­al pro­vi­sions of the Swiss Crim­in­al Code¹⁸⁸ ap­ply un­less this Act provides oth­er­wise.

In the case of in­fringe­ments with­in busi­nesses com­mit­ted by sub­or­din­ates, agents or rep­res­ent­at­ives, Art­icles 6 and 7 of the Fed­er­al Act of 22 March 1974¹⁹⁰ on Ad­min­is­trat­ive Crim­in­al Law ap­ply.

¹ The com­pet­ent au­thor­it­ies for the pro­sec­u­tion and judg­ment of an of­fence are those of the place where the act was com­mit­ted or of the place where the act oc­curred; where more than one place comes in­to con­sid­er­a­tion, or where sev­er­al joint of­fend­ers are con­cerned, the com­pet­ent au­thor­it­ies are those of the place where the in­vest­ig­a­tion was first com­menced.

² The com­pet­ent au­thor­it­ies for the pro­sec­u­tion and judg­ment of in­stig­at­ors and ac­com­plices are those which are com­pet­ent for the pro­sec­u­tion and judg­ment of the main of­fend­er.

¹ The pro­sec­u­tion and judg­ment of an of­fence is a mat­ter for the can­ton­al au­thor­it­ies.

² Judg­ments, pen­alty or­ders is­sued by ad­min­is­trat­ive au­thor­it­ies and de­cisions to dis­miss pro­ceed­ings must be com­mu­nic­ated without delay, free of charge and with full cop­ies of doc­u­ments to the Of­fice of the At­tor­ney Gen­er­al of Switzer­land.

¹ If the per­son un­der in­vest­ig­a­tion pleads the nullity of the pat­ent as a de­fence, the court may al­low him an ap­pro­pri­ate time lim­it with­in which to file a nullity ac­tion, giv­ing ap­pro­pri­ate no­tice of the pen­alty for fail­ure to do so; if the pat­ent has not been ex­amined with re­gard to nov­elty and in­vent­ive step and if the court has any doubt as to the valid­ity of the pat­ent, or if the per­son un­der in­vest­ig­a­tion has provided prima facie evid­ence that the de­fence of nullity of the pat­ent ap­pears jus­ti­fied, the court may al­low the in­jured party an ap­pro­pri­ate peri­od with­in which to file an ac­tion for de­clar­a­tion of the valid­ity of the pat­ent, like­wise giv­ing ap­pro­pri­ate no­tice of the pen­alty for fail­ure to do so.¹⁹¹

² Where the ac­tion is raised with­in the stated peri­od, the crim­in­al pro­ceed­ings shall be sus­pen­ded un­til a fi­nal de­cision on the ac­tion has been is­sued; the lim­it­a­tion peri­od for pro­sec­u­tion is sus­pen­ded dur­ing this time.

³ …¹⁹²

¹ The Fed­er­al Of­fice for Cus­toms and Bor­der Se­cur­ity (FO­CBS) is au­thor­ised to no­ti­fy the pro­pri­et­or of a pat­ent that is val­id in Switzer­land if there is any sus­pi­cion that goods that in­fringe that pat­ent may im­min­ently be brought in­to or taken out of Swiss cus­toms ter­rit­ory.¹⁹⁵

² In such cases, the FO­CBS is au­thor­ised to with­hold the goods for three work­ing days in or­der that the per­son en­titled may file an ap­plic­a­tion in ac­cord­ance with Art­icle 86b para­graph 1.

¹ If the pro­pri­et­or or a li­censee of a pat­ent that is val­id in Switzer­land en­titled to in­sti­tute pro­ceed­ings has clear in­dic­a­tions that goods which in­fringe that pat­ent may im­min­ently be brought in­to or taken out of Swiss cus­toms ter­rit­ory, he may re­quest the FO­CBS in writ­ing to re­fuse the re­lease of the goods.¹⁹⁶

² The ap­plic­ant must provide all the in­form­a­tion avail­able to him that is ne­ces­sary for the FO­CBS’s de­cision; this in­cludes a pre­cise de­scrip­tion of the goods.

³ The FO­CBS shall make the fi­nal de­cision on the ap­plic­a­tion. It may charge a fee to cov­er the ad­min­is­trat­ive costs.

¹ If the FO­CBS, as a res­ult of an ap­plic­a­tion un­der Art­icle 86b para­graph 1, has grounds to sus­pect that cer­tain goods in­ten­ded to be brought in­to or taken out of Swiss cus­toms ter­rit­ory in­fringe a pat­ent val­id in Switzer­land, then it shall no­ti­fy the ap­plic­ant and the de­clar­ant, hold­er or own­er of the goods ac­cord­ingly.¹⁹⁷

² It shall with­hold the goods for a max­im­um of ten work­ing days from the time of no­ti­fic­a­tion pur­su­ant to para­graph 1, so that the ap­plic­ant may ob­tain pre­lim­in­ary meas­ures.

³ Where jus­ti­fied by cir­cum­stances, it may with­hold the goods for a max­im­um of ten ad­di­tion­al work­ing days.

¹ While the goods are be­ing with­held, the FO­CBS is au­thor­ised to hand over or de­liv­er to the ap­plic­ant, on re­quest, samples for ex­am­in­a­tion or to per­mit the ap­plic­ant to in­spect the goods be­ing with­held.

² The samples are col­lec­ted and de­livered at the ex­pense of the ap­plic­ant.

³ They must be re­turned after the ex­am­in­a­tion has been car­ried out, if this is reas­on­able. If samples are re­tained by the ap­plic­ant, they are sub­ject to the pro­vi­sions of cus­toms le­gis­la­tion.

¹ At the same time as no­ti­fic­a­tion is made in ac­cord­ance with Art­icle 86c para­graph 1, the FO­CBS shall in­form the de­clar­ant, hold­er or own­er of the goods of the pos­sible han­dover of samples or the op­por­tun­ity to in­spect them in ac­cord­ance with Art­icle 86d para­graph 1.

² The de­clar­ant, hold­er or own­er may re­quest to be present at the in­spec­tion in or­der to safe­guard his man­u­fac­tur­ing or trade secrets.

³ The FO­CBS may re­fuse to hand over samples on a reasoned re­quest from the de­clar­ant, hold­er or own­er.

¹ When mak­ing an ap­plic­a­tion un­der Art­icle 86b para­graph 1, the ap­plic­ant may sub­mit a writ­ten re­quest to the FO­CBS to des­troy the goods.

² If an ap­plic­a­tion for de­struc­tion is made, the FO­CBS shall no­ti­fy the de­clar­ant, hold­er or own­er of the goods ac­cord­ingly as part of the no­ti­fic­a­tion made un­der Art­icle 86c para­graph 1.

³ The ap­plic­a­tion for de­struc­tion does not res­ult in the time lim­its for ob­tain­ing pre­lim­in­ary meas­ures un­der Art­icle 86c para­graphs 2 and 3 be­ing ex­ten­ded.

¹ The de­struc­tion of the goods re­quires the con­sent of the de­clar­ant, hold­er or own­er.

² Con­sent is deemed to be giv­en if the de­clar­ant, hold­er or own­er does not ex­pressly ob­ject to the de­struc­tion with­in the time lim­its giv­en un­der Art­icle 86c para­graphs 2 and 3.

Be­fore the de­struc­tion of the goods, the FO­CBS shall re­move samples and hold them in safe­keep­ing as evid­ence in any ac­tions for dam­ages.

¹ If the de­struc­tion of the goods proves to be un­jus­ti­fied, the ap­plic­ant is ex­clus­ively li­able for the res­ult­ant loss.

² If the de­clar­ant, hold­er or own­er has giv­en ex­press writ­ten con­sent for the de­struc­tion, no claims for dam­ages may be made against the ap­plic­ant if the de­struc­tion later proves to be un­jus­ti­fied.

¹ The de­struc­tion of the goods is car­ried out at the ex­pense of the ap­plic­ant.

² The costs for col­lect­ing and safe­keep­ing samples un­der Art­icle 86h are de­cided by the court in con­nec­tion with the as­sess­ment of claims for dam­ages in ac­cord­ance with Art­icle 86i para­graph 1.

¹ If it is an­ti­cip­ated that with­hold­ing the goods may lead to a loss be­ing in­curred, the FO­CBS may make the with­hold­ing of the goods de­pend­ent on the ap­plic­ant provid­ing them with an ac­count­ab­il­ity state­ment. As an al­tern­at­ive to this state­ment and where jus­ti­fied by the cir­cum­stances, the FO­CBS may re­quest the ap­plic­ant to provide ap­pro­pri­ate se­cur­ity.

² The ap­plic­ant shall be li­able for any losses in­curred from with­hold­ing the goods and from col­lect­ing the samples if pre­lim­in­ary meas­ures are not ordered or prove to be un­jus­ti­fied.