The (more) competent court shall decide examination and opposition appeals

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A major revision of the Swiss PatA is currently in the making; see this Blog here, here and here. Inter alia, examination on the merits (novelty and inventive step) as well as a full-fledged opposition proceeding is proposed.

According to the draft bill, the Federal Administrative Court should have handled appeals against decisions of the IPI in examination and opposition. This has been criticized by many because the FPC would appear to be the more intuitive choice. The submissions during the public consultation almost unanimously reflect this.

The Supreme Court recommends that the FPC should handle such appeals:

The FPC is apparently willing to do so and proposes itself:

The Federal Administrative Court abstains from taking a position on whether or not it should be the responsible authority (obviously already in knowledge of the Supreme Court’s take on this), but reminds that independence of justice needs to be maintained if the FPC would be responsible for both administrative and civil proceedings:

But this can surely be resolved. INGRES, AIPPI, VESPA, VIPS and VSP have jointly commissioned an expert opinion of Prof. Dr. Rainer J. Schweizer who proposes to install a second administrative department (‘zweite verwaltungsgerichtliche Abteilung’).

In my perception, this addresses — and resolves — the reservations of the Federal Administrative Court. Some amendments to the PatCA will be necessary, but this appears doable. Accordingly, I would be surprised if the FPC would not turn out to be the appeal authority in the final bill.

Reported by Martin WILMING


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