As of 1 January 2019 Swiss patent law will be amended as to protect the freedom of treatment of doctors and pharmacists. The legislative action was triggered by the lawmaker's concern that the claims for second medical use will no longer be limited to the manufacture of a medicament (so called Swiss type claim "use of a substance … for the manufacture of a medicament for use in treatment of …") and be replaced by purpose-limited product claims ("substance … for use in the treatment of …"). In the past, the limitation to the "manufacture of a medicament", made clear that the prescribing physicians and the dispensing pharmacists were not exposed to patent liability, because they did not manufacture the drug. However, this had changed with the new purpose-limited product claims as stipulated under the European Patent Convention 2000, as confirmed by the Enlarged Board of Appeal of the European Patent Office in its decision G2/08.
The now amended Swiss Patent Act will not only exempt physicians and pharmacists from liability for patent infringement but also exempts their actions from the scope of patent protection altogether. The practical difference is that the medical practitioner does not infringe the patent and their actions are lawful. As a further consequence, there will be no indirect infringement by the manufacturer, unless he explicitly promotes the patented indication. The reason is that the manufacturer does not use the substance to treat the claimed medical condition as claimed with the purpose-limited product claim. For the direct infringement, it is irrelevant whether the company knows or has reason to know that physicians might prescribe the drug for the claimed medical condition.
One of the practical consequences of this amendment is that the patents for the new indications for Humira (adalimumab) cannot be enforced in Switzerland.
However, the amendment does not allow companies to offer for sale and market a patented indication. Advertising a known substance for a patented second medical use violates Swiss patent law. Thus, a party that manufactures and/or markets its drug with label instructions which describe the patented use commits an independent, direct patent infringement.