What Can I Protect with a Patent?

Definitions upfront: Invention and Patent

According to the law, an invention is a technical product or process that provides a solution to a specific problem. Processes include, for example, measurement, manufacturing, or control processes. Invented products can include various goods, tools, machinery, and equipment and can be patented.

By patenting your invention, you enjoy the protection that no third party may make use of it. The patent covers, among other things, the production, introduction, or sale of your invention in the respective country.

The 3 Requirements for a Patent

There are particularly three basic requirements for applying for a patent.

1. The invention must be entirely new. The patent law states that it must not belong to the state of the art. This means that it is no longer considered new if a third party has already published a procedure orally or in writing, and you now implement this procedure first. It's also important to keep your invention secret beforehand. Even if you have already made parts of your idea public before patenting, this can be defined as the current state of the art. Thus, even your own invention would no longer be considered new – apart from the fact that someone could preempt you in patenting.
2. The invention must actually be inventive. But what exactly does that mean? Quite simply: The theory of your invention must not be obvious from the perspective of an imaginary, non-inventive specialist. Just think of the phrase that you can't reinvent the wheel.
3. The invention must be feasible, commercially usable, and the process must be repeatable more than once. A fixed idea whose technical implementation cannot be demonstrated cannot be patented.

Special Case for Pharmaceutical and Plant Protection Products

For commercial use, a patent is not enough for pharmaceutical and plant protection products. An additional official approval is required. The right contact points are Swissmedic, FSVO, and FOAG. After patenting, the patent holder's product is already protected, but it cannot yet be distributed or used. Since the approval can take up to ten years, you can apply for a patent extension through a supplementary protection certificate (SPC).

Exceptions: What Cannot Be Patented

Some inventions cannot be patented in Switzerland. This includes the following:

• Learning methods
• Game rules
• Extraordinary ideas without direct connection to a feasible, technical solution
• Discoveries of natural processes (e.g., in the animal or plant world)
• The discovery of new plant varieties or animal breeds or the invention of their breeding (however, substances obtained from plant cells, for example, can be patented)
• Theories of scientific nature
• Methods of mathematics
• Complete computer programs (these are already protected by copyright; however, computer-assisted control techniques, for example, can be patented)
• Procedures for diagnosis, therapy, or surgery applicable to humans or animals
• Unlawful or ethically questionable procedures (e.g., human cloning)

Labeling Your Invention

With a registered entry, your product or process is protected. Labeling is optional and makes sense, for example, from a sales perspective. The patent mark consists of the Swiss cross and the patent number. The indication +pat+, CH (for Switzerland), or EP/CH (for a patent within the entire EU) plus the patent number is also common, for example, CH675143.

Research and Examinations Before Patent Application

Before patenting, you should develop a patenting strategy. This should address the following questions in particular.

What exactly do you want to protect?

There are various options here. For a machine, for example, you can patent either the entire machine, a specific part, or the mechanism or process. Often it makes sense to protect the entire product. However, if you only patent one element, the process can still be used by others. Therefore, always consider where the unique selling proposition of the product or process lies and what details should not be copied.

Is the invention already there?

Checking this or commissioning an examination is the responsibility of the applicant. When applying for a patent in Switzerland, you can, for a fee, commission the IPI to conduct a preliminary examination. However, this is not done automatically. If you had the same idea as another market participant, the right of the one who was faster with the patenting applies. Be aware that as the patent holder, you may have to go to court in case of doubt or accusation.

In which country do you want to protect your patent?

The patent is protected in the country in which it is registered. Therefore, you should consider whether it is sufficient to register the protection within Switzerland, and consequently also automatically in Liechtenstein. Otherwise, you can also register it throughout the entire EU. Caution is always better than regret, but do not forget the ongoing fees. Always weigh costs and benefits consciously against each other.

How quickly do you need the patent?

Here, the key is not to rush, but still to be as quick as possible. If you're only at the initial drafts, it's better to wait. If your idea is already mature for patenting, be faster than potential competitors. It can take several years from application to full patent and its comprehensive protection. From the application to the grant, you enjoy provisional protection. For those in a hurry, there is also the option of an expedited procedure within Switzerland.

Enforcement and Contestation of Patents

Even after patenting, it is important to regularly check whether third parties are knowingly or unknowingly using or marketing your invention. As the patent holder, you have the right to directly demand cease and desist in case of violations. If a factual letter does not bring an out-of-court solution, the Federal Patent Court acts as a conciliation body.

Professional Support

Understanding patent law in general and creating a suitable patenting strategy can be very comprehensive and complex. Certain institutions, such as the IPI, offer helpful services and support, especially for research activities. There are also professional development opportunities. However, if you want to make sure that your invention remains your own and want a professional partner by your side in case of disputes, consulting a patent attorney with many years of experience is advisable. It is often a great investment in the future.

GetYourLawyer assists you in finding a suitable patent law specialist. Simply submit your request online and find a lawyer who truly fits your individual case.