Patents
⚡TL;DR
- A patent protects an invention, meaning a "new technical solution to a technical problem."
- Software is only patentable if it has a technical character, meaning if it has a specific interaction with hardware.
- Maintain confidentiality with NDAs or other similar confidentiality agreements during the application process.
A patent is a legal right granted by the Swiss Federal Institute of Intellectual Property (IPI). It protects inventions, meaning "new technical solutions to technical problems."
It allows the patent holder exclusive rights to use, manufacture, and sell an invention for a limited period, typically 20 years.
Patents are intended to encourage innovation by providing inventors with the opportunity to recoup research and development investments by being granted a monopoly.
To be patentable, an invention must:
- Be novel: The invention should not be part of the existing state of technology, meaning it should not have existed before.
- Involve an inventive step: It must not be obvious to a person skilled in the art.
- Have a technical character: The invention should have a technical aspect that solves a technical problem.
- Be industrially applicable: It should be possible to make or use the invention in any kind of industry.
- Be disclosed: The invention must be sufficiently disclosed and clear in the patent to be carried out by a person skilled in the art.
In Switzerland, the patentability of software is a nuanced subject. According to Swiss patent law, software as such is not patentable. However, if the software is part of a technical invention that provides a novel and inventive technical contribution, it may be eligible for patent protection.
In order to have a technical character and therefore fulfill the requirements, software must have a further technical effect on the physical world. In other words, the patent will protect how the software interacts with the hardware.
Besides, general software algorithms or business methods are not patentable. To be patentable, the software must be implemented in a specific technical application.
If you want to register your patent, it involves a few key steps as outlined below. But even before that, it is important to establish a patent strategy by speaking with experts early on in your R&D process.
- Pre-application
- Patent search: Ensure your invention is novel with a patent search.
- Freedom-to-operate search: Ensure that you can market your invention without infringing the IP of others.
- Document everything: Keep thorough records of your invention.
- Confidentiality agreements: Use NDAs or other confidentiality agreements when discussing your idea with others and with your employees. Keep using NDAs until the patent is granted.
- Application
- Post-application
- Maintain confidentiality: Keep details confidential until the patent is granted. Use NDAs or other confidentiality agreements.
- Provisional protection: Once the application is published, you get provisional protection, which means you can act against infringers.
- Monitor for infringements: Keep an eye on the market for potential infringements.
- Post-registration
- Pay annual fees: To maintain the patent.
- Enforce your rights: Be prepared to legally protect your patent.
Best practices
Patents: When a patent comes into question, the following is implemented.
Patent experts are contacted early in the R&D process to establish a patent strategy and ensure the pre-application documentation is effective.
When a technical invention is developed by the company, a freedom-to-operate research is conducted.
Confidentiality agreements (e.g., NDAs) are signed to protect the R&D results until the patent is granted Our LEXR Standard NDA can be generated for free here.
Costs to obtain patent protection will vary based on complexity. However, this is a rather expensive process with a minimum cost of CHF 4'000.
Whether an invention is patentable or not must be assessed on a case-by-case basis.
For the registration, and while we can help guide you in the right direction, it's advisable to consult with a patent attorney specializing in the relevant area (e.g., software, med-tech, etc.). They provide guidance on whether your invention meets the necessary criteria and assist with the patent application process.
We are happy to support you on general patent strategy and the draft of all necessary agreements related to your patent, be it to license your rights to customers or to negotiate university IP transfer or R&D partnerships. Book a free call with us to discuss how we can support you.
You can generate our LEXR Standard NDA for free on our website.