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September 22, 2021

Germany and Switzerland introduce reforms to IP legislation

Switzerland

The Swiss Federal Institute for Intellectual Property (IGE) has announced plans for a partial revision of the Swiss Patent Act. The notice comes after a meeting of the Swiss Federal Council (Council) which took place on August 18, 2021, during which a modernised version of the patent examination procedure was discussed in line with plans for updated patent legislation. The revision was initially sent for consultation on October 14, 2020.

The proposed amendments to the Swiss Patent Act come after a decision by the Council to begin implementing a full examination of Swiss patents in line with a parliamentary mandate, as well as to potentially introduce the option of utility model protection. Prior to the proposed amendments, the IGE did not examine patent applications for novelty and an inventive step. As such, the possibility of the Swiss Patent system introducing the option for applicants to either obtain a fully examined patent, or an unexamined utility model as an alternative, was discussed.

Upon reviewing the consultation results, the Council announced that it still intends to introduce the full examination of a patent, bringing the legislation in line with the parliamentary mandate, however, applicants will also be able to opt for partial examination, allowing for the full examination of a patent to be optional.

Since the route of partial patent examination was retained as per the current Swiss IP system, it was therefore decided that there would be no need to introduce the utility model, as applicants already have a less stringent and cost-effective alternative to a fully examined patent. In order to provide more legal certainty for the lesser examined patents, each patent application is to be supplemented by a mandatory search.

Whilst the revision of the Swiss Patent Act remains under consideration, the Federal Council awaits corresponding submissions on the amendments, and it is not yet known when the proposed changes will be implemented.

Germany

The 2nd Patent Law Modernization Act was published in the Federal Law Gazette of Germany on August 17, 2021, adding various new regulations in relation to IP protection to the country's already existing legislation.

The amendments are set to be implemented on May 1, 2022, and include three main points of change to the previous IP law. One important amendment is that the deadline for entering the national phase for PCT international applications has been extended to 31 months, as opposed to the previous term of 30 months. This change is said to have been implemented to afford applicants more time to make a decision on entering the PCT national phase in the jurisdiction, assess the scope for investors for the commercialisation of an invention, and estimate the chances of a successful outcome of patenting an invention in Germany.

Additional amendments include the introduction of deadline extensions for matters before the German Patent and Trademark Office (DPMA) in the event of public holidays. This includes all holidays which apply to any DPMA office, regardless of the Federal state in which they are located. Further, the DPMA will allow those appearing before the office in relation to negotiations, hearings and interviews in IP proceedings to utilise video technology to attend conferences electronically, instead of in person.

In addition to the amendments to the patent system before the DPMA, the office is also set to implement an increase in fees in relation to annuities for supplementary protection certificates. Moreover, an amended version of the trademark legislation in Germany is also expected to be introduced in line with the Madrid System.
With the revised legislation, the DPMA intends to strengthen the IP system in Germany and its position in the wider international IP sphere, and thus is hoped to encourage an increase in applications filed with the German IP Office.

Author: Danielle Carvey
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