A new popular initiative is in the making: State-funded patent litigation!

Reading time: 2 minutes

I am in touch with some colleagues who advocate for a very much disadvantaged minority: Patentees!

A legitimate initiative, indeed. Just think of it: Patent owner are milked over and over again! Obtaining a patent is an expensive exercise in the first place, and others are piggy-back riding on patentees’ outstanding technical achievements later on for free. On top of that, the state pockets annually recurring fees. And as if all this was not unfair enough, patent owner also have to finance the enforcement of their patents against free-riders.

Could patentees actually be treated any more terribly?!

Activists hugely support the popular initiative

A straight-forward tweak of Art. 1 para. 3 PatA that is currently considered for inclusion in the Federal Constitution could be as simple as this:

Patents are granted without the guarantee of the State, but the costs of enforcing a patent are borne by the State.

This could be pragmatically funded e.g. with an almost neglectable increase of the value added tax (VAT). Court fees of the FPC could accordingly be abolished (btw, did you ever realize that the building of the Federal Administrative Court where the FPC holds its hearings closely matches the shape of Dagobert Duck’s ‘Geldspeicher‘?!), and patentees might submit their counsel’s invoices for legal representation and assistance of the patent attorney (necessary expenses, you know) to the court for refund or direct settlement.

A committee is currently being formally established to further elaborate the popular initiative. The current working title is ‘Patent-Pflegeinitiative’ (apologies, but this only works in German language).

The committee is still looking for motivated people to join; please use the contact form below. You may also drop your spontaneous ideas or visions on the topic in the form, or in the comments at the very bottom of this post. Thank you.

Martin Wilming

April Fool!


Join the committee for a popular initiative to pave the way for state-funded patent litigation now. Leave your contact details below, to stay tuned.


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*** BREAKING *** Be prepared for patent term adjustments, to compensate for delays during prosecution

Reading time: 3 minutes

Case No. O2020_08/15 | Main hearing of 1 April 2021

The main hearing in this matter earlier today was highly interesting.

The ACME catalog
Acme Corp.

In brief, Acme Corp. asserts infringement of a European patent by Globex Corp. The tricky thing is that the patent had already been cancelled from the register at the end of its 20y term more than two years(!) before the alleged infringement took place.

Globex Corp.

Globex Corp. essentially contends that the complaint is simply an impertinence. What no longer exists cannot be infringed. Hank Scorpio, the CEO of Globex Corp., shouted out:

Where would we be?

But it appears to be not that easy. Acme Corp. essentially argued that it has been cheated out of several years of patent term because the patent was granted only more than 15 years(!) after the filing date. In Acme’s view, this demands for a term adjustment to compensate for the delay during prosecution through no fault of their own. Such term adjustments are granted ex officio in the U.S., and Acme argued that this was only fair.

We want this!

During a break, I had a quick chat with a person who prefers to not see his name on this Blog but who is knowledgeable of the current status of the draft of the forthcoming revision of the Swiss Patent Act; see this Blog here for further information on the draft bill. It appears that some wished for U.S.-style patent term adjustments (similar to 35 U.S.C. 154) during public consultation, which will indeed be included in the final draft of the revised Swiss Patent Act. Accordingly, I understand that we may see patents valid in Switzerland with terms reaching months, if not years beyond the 20y term. This is unprecedented in Europe, to the best of my knowledge!

Stay tuned for further details to be published soon. It may well be that the transitional provisions of the revised PatA turn out to be decisive for the case at hand. And others. Yours, maybe?

Reported by Martin WILMING

April Fool! 😂


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