At a glance: intellectual property for digital health in Switzerland

Intellectual property

What are the most noteworthy rules and considerations relating to the patentability and inventorship of digital health-related inventions?

With regard to digital health-related inventions, two main issues need to be taken into account. First, ‘software as such’ is, in principle, not patentable in Switzerland. To be patentable, the claimed software needs to have a technical effect that goes beyond normal physical interaction between software and hardware. Second, the European Patent Convention (to which Switzerland is a party) explicitly excludes ‘methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body’, except for ‘products, in particular substances or compositions, for use in any of these methods’. Given that a single step of treatment by surgery or therapy is sufficient to disqualify the invention from being patentable, a high degree of diligence is required when drafting the patent claims.

Inventions created by employees ‘in the course of their work for the employer and in performance of their contractual obligations’ belong automatically to the employer without further compensation being payable. Inventions created in the course of the employee’s work – but not in the performance of his or her obligations – can be acquired by the employer if this was set out in the employment agreement and against payment of special compensation.

What is the patent application and registration procedure for digital health technologies in your jurisdiction?

Switzerland is a signatory State of the European Patent Convention and the vast majority of patents in force in Switzerland are granted by the European Patent Office (EPO). It is also possible to file patent applications in Switzerland with the Federal Institute of Intellectual Property (FIIP); however, under the rules currently in force, Swiss national patents are granted without being examined for novelty and inventive step.

There are no special prosecution rules for digital health technologies before the FIIP or the EPO.

Are any other IP rights relevant in the context of digital health offerings? How are these rights secured?

The main IP right relevant in the context of digital health is copyright. The Federal Act on Copyright and Neighbouring Rights (CA) provides for the protection of literary and artistic works, which extends to software. Copyright in a work exists, and vests in its author, as from its creation without the need (or even possibility) to register it. The ordinary term of copyright protection is 70 years after the death of the author; copyrights in software expire 50 years after the death of the author.

Swiss law does not contain any provision regarding the ownership of copyrighted works created by employees, except for copyright in software. Therefore, in the absence of (explicit or implicit) contractual provisions, the general rule is that the copyright vests in the author of the work (ie, the employee). As regards software, the CA provides that the employer has the exclusive right to use any software that has been created by its employees in the course of discharging their professional duties or fulfilling their contractual obligations. However, employers and employees are free to agree on a different allocation of copyrights in employment agreements, subject to the general limitations on the assignment of moral rights (such as the right to be named as author).

Trade secrets and know-how are important assets in the context of digital health offerings (as in any technology sector), although they are not considered IP rights per se in Switzerland as they are not absolute rights. Note, however, that certain provisions in Swiss law prohibit specific conduct with respect to trade secrets and know-how (such as the Federal Act against Unfair Competition, Labour Law, Criminal Law and Corporate Law).

As in any other business sector, trademarks are also important. In Switzerland, trademark protection requires the registration of the sign with the FIIP. The term of the trademark protection is initially 10 years and can be renewed an unlimited number of times.

What practical considerations are relevant when licensing IP rights in digital health technologies?

Under Swiss law, the licensing of IP rights is not subject to any formal requirements. In particular, the validity of licences is not subject to registration (but registration is possible with respect to IP rights that are registered, such as patents and trademarks) or to a written licence agreement. Nevertheless, it is common and recommended to enter into written licence agreements and to register the licence (considering that a licensee can otherwise not enforce its licence rights against a third party acquiring in good faith the concerned IP rights).

Further, if more than one party holds the IP right to be licensed, the consent of all co-owners is, in principle, required.

All IP rights (registered and unregistered) can be licensed in whole or in part. It is, therefore, possible (eg, to grant a licence only for one specific claim of a patent, for only one specific good claimed by a trademark or for only one specific exploitation right of copyrights in software. A licence can be exclusive, sole or non-exclusive, can be limited to a specific territory (competition law requirements have to be taken into consideration) or limited in time.

What procedures govern the enforcement of IP rights in digital health technologies? Have there been any notable enforcement actions involving digital health technologies in your jurisdiction?

Enforcement of IP rights in digital health technologies is subject to the general rules of enforcement of IP rights. Patent infringement and validity cases are heard in the first instance before the Federal Patent Court for the entire country. Non-patent IP proceedings are heard in the first instance by the High Court or Appeals Court of the Canton that has local jurisdiction. The Federal Supreme Court is the only appeal instance in all IP proceedings.

In a recent case, the Federal Supreme Court had to decide a case involving a patent related to a ventilator for use in intensive care. The distinguishing feature of the invention was the presence of a screen showing an animated representation of the ventilated lung. The court had to opine on whether the animated representation of a ventilated lung on a screen contributes to solving a technical problem and thus must be taken into account when analysing the inventive step. The Court sided with the patentee and considered that this feature has a technical character because it provides information about the technical status of the ventilator and credibly assists the user in a human-machine interaction process.