No explicit definition of the term “Traditional Knowledge” can be found in Swiss legislation, even though the term itself appears in Article 49a Patent Law.

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In the comments (“Botschaft”) to the Patent Law revision 2005, there is a remark that there is no internationally accepted definition of TK, but that TK can be described as knowledge, innovation and customs of indigenous and local communities in developing and industrialised countries, which have been created, improved and adapted to changing requirements and environmental conditions by these communities over generations, and handed down to subsequent generations, often in oral form.

Since the Patent Ordinance Article 45a (see below, question 6a) makes reference to the Convention on Biological Diversity of 5 June 1992, it has to be assumed that TK has to be interpreted in the sense of this Convention ratified by Switzerland.

Swiss law does not provide for direct positive protection of TK, be it Swiss TK or TK originating in other (developing) countries. However, one could consider indirect positive protection of TK by a trademark (e.g. guarantee mark), indication of origin/geographical indication, patent, design or copyright.

A kind of defensive protection is provided by the requirement of indicating the source of TK of indigenous and local communities connected with genetic resources, if an invention to be patented is directly based on such TK.

Positive TK protection:

Guarantee mark, Article 21¹, Law on the Protection of Trademarks and Indications of Origin:

The guarantee mark is a sign, which is used, under control of the mark owner, by several enterprises and which serves to guarantee the properties, geographical origin, method of production or other characteristics common to goods or services of such enterprises.

Indication of origin, Article 47¹, Law on the Protection of Trademarks and Indications of Origin:

Indications of origin are direct or indirect references to the geographical origin of goods or services, including references to their nature or properties, which are related to their origin.

Ordinance on the Protection of Designations of Origin and Geographical Indications for Agricultural Products and Processed Agricultural Products:

Art. 1 Principle

Designations of origin and geographical indications for agricultural products and processed agricultural products that have been entered into the Swiss Federal Register are protected.

Art. 2 Designation of origin

¹ The name of a region, a place, or, in exceptional cases, a country used to describe an agricultural product or processed agricultural product:

• a.
  originating in that particular region, place or country;
• b.
  the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors; and
• c.
  the production, processing and refining of which take place in the defined geographical area may be registered as a designation of origin.

² Traditional names for agricultural products or processed agricultural products that meet the conditions set out in paragraph 1 may be registered as designations of origin.

Art. 3 Geographical indication

¹ The name of a region, a place, or, in exceptional cases, a country used to describe an |agricultural product or processed agricultural product:

• a.
  originating in that particular region, place or country;
• b.
  which possesses a specific quality, reputation or other characteristics which can be attributed to that geographical origin; and
• c.
  the production, processing or refining of which take place in the defined geographical area may be registered as a geographical indication.

²Traditional names for agricultural products or processed agricultural products that meet the conditions set out in paragraph 1 may be registered as geographical indications.

Patent Law, Article 1:

¹Patents are granted for new inventions which can be used in industry:

²Whatever results from the state of the art (Art. 7²) in an obvious manner is not a patentable invention.

Design Law, Article 1:

This Law protects designs of goods or parts of goods, characterised in particular by the arrangement of lines, surfaces, contours or colours or by the materials used.

Patent and design protection requires novelty, and inventive step or originality, respectively. Novelty may be difficult to ascertain for TK.

Copyright protection may be considered for TK in the sense of traditional cultural expressions (TCE).

Law on Copyright and Neighbouring rights:

Art. 2 Definition of works

¹Works are, independent of their merit or purpose, creations of the mind in literature and art, which have an individual character.

²Such works are, in particular:

• a.
  literary, scientific or other works of language;
• b.
  works of music and other acoustic works;
• c.
  works of fine art, especially paintings, sculptures and graphic works;
• d.
  works with scientific or technical content, such as drawings, plans, maps or modelled presentations;
• e.
  works of architecture;
• f.
  works of applied art;
• g.
  photographic works, films and other visual or audiovisual works;
• h.
  choreographic works and pantomimes.

Defensive TK protection:

It may be considered that registration of TK (or TCE) as a guarantee mark, indication of origin/geographical indication, patent or design may be prevented by deeming such registration to be contrary to morality (Art. 2(d) Trademark Law; Art. 2¹ Patent Law, Art. 4(e) Design Law). The illicit element may be in that the TK/TCE shall not be commercialised at all according to the will of its creators/custodians or that it shall not be commercialised by someone who has no connection with the creators/custodians. With regard to designs one may also consider that if someone unrelated to the creators/custodians tries to register as a design a form coming from traditional sources in developing countries (and which is not known in Switzerland) such design may be deemed not to be new anymore and thus may not be registered – this despite the usual approach that a design is not new anymore only if possibly known to the relevant circle of people in Switzerland.

A patent cannot be granted for TK which has been part of the public domain anywhere in the world. The “defensive protection” extends to an invention obvious in view of TK considered to be state of the art:

Patent Law Art. 7² corresponding to European Patent Convention Article 54(2):

The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the priority date or the date of filing.

For TK collected in suitable data bases, examiners and courts may easily determine whether particular TK is part of the state of the art and hence cannot be the subject matter of a patent, and whether an invention is obvious in view of such TK. As a consequence defensive protection is easily available for TK accessible to the public at large.

Further defensive protection is provided in that Patent Law requires the indication of source of TK. This should minimise misappropriation of such TK used as a starting point for inventions:

Patent law, Article 49a:

¹ The patent application shall contain indications about the source:

• a.
  of genetic resources […];
• b.
  of traditional knowledge of indigenous and local communities connected with genetic resources, to which the inventor or the applicant had access, if the invention is directly based on such knowledge.

² If the source is neither known to the inventor nor the applicant, this fact must be declared by the applicant in writing.

Patent law, Article 81a:

¹ Whoever intentionally provides false information according to Article 49a will be sentenced to a fine up to SFR 100’000.

² The judge may order publication of the judgement.

Patent law, Article 138:

The applicant shall [a. …;] b. provide indications about the source (Art. 49a); [c. …; d. …;] to the Institute within 30 months after the application or the priority date.

Patent Ordinance, Article 45a:

¹The source of genetic resources or traditional knowledge in the sense of Article 49a of the Law has to be stated in the description of the invention.

²Considered in particular as source according to paragraph 1 are:

• a.
  the country providing genetic resources in the sense of Articles 2 and 15 of the Convention on Biological Diversity of 5 June 1992;
• b.
  the multilateral system in the sense of Article 10² of the International Treaty on Plant Genetic Resources for Food and Agriculture of 3 November 2001;
• c.
  indigenous and local communities in the sense of Article 8j of the Convention on Biological Diversity of 5 June 1992;
• d.
  the country of origin of genetic resources in the sense of Article 2 of the Convention on Biological Diversity of 5 June 1992;
• e.
  ex-situ sources such as, for example, botanical gardens or gene banks;
• f.
  scientific literature.

There are no sui generis measures for TK protection in existing IP laws and regulations.

There is no sui generis law for TK protection.

Guarantee mark: May serve to secure the properties, geographical origin, method of production or other common traits of goods or services of TK. If any of these aspects are fulfilled, a guarantee mark may be considered as a vehicle of protection.

Indication of origin/geographical indication: May serve to secure appearance and workmanship or properties of goods and services of TK, which are connected with the origin. If such aspects are fulfilled, indications of origin (geographical indication) may be considered as a vehicle of protection.

Patent: Patent protection requires that the TK had not been accessible and cannot be considered part of the state of the art (novelty requirement). Furthermore such TK must be based on an inventive step, i.e. non-obvious for a skilled person in the art, to be patentable.

Design: Design protection is restricted to a particular appearance of goods, and requires novelty and originality. Novelty may be difficult to ascertain for TK, see discussion under 6a).

Copyright: Protection is provided for creations of the mind in literature and art, which have an individual character.

• –
  owner of registration (patent and design)
• –
  any person that fulfils the requirements of the corresponding guarantee mark or indication of origin
• –
  author/creator (copyright)

as defined for the guarantee mark, indication of origin, patent, design and/or copyright, respectively, without special reference for TK being the basis of such protection

interdiction of infringement, termination of infringement (permanent injunction), financial compensation such as damages, accounting of profits or reasonable licence fee

Guarantee marks, patents and designs must be registered. Designations of origin and geographical indications for agricultural products and processed agricultural products need not, but may be registered.

see a) and c)

Right of parallel use (continuing exploitation), private use (Patent Law, article 35, Design Law, article 13)

Trademarks (e.g. guarantee mark): 10 years, renewable indefinitely

Indication of origin/geographical indication: indefinitely

Patent: 20 years

Designs: 5 years, four times renewable for 5 years (i.e. a total of 25 years)

Copyright: 70 years after death of the (individual) creator

Trademark (e.g. guarantee mark), patent and design must be registered.

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Paris Convention and corresponding international IP agreements

Indication of origin/geographical indication: Agreements between states

Note: the items in this non-exhaustive list are taken from the IGC draft articles relating to the protection of TK dated 20 May 2011: WIPO/GRTKF/IC/19/5. Groups may benefit from referring to this document in answering question 7, but should also add any additional criteria, which exists in their national law.

no

• (i)
  genetic resources; or
• (ii)
  TCEs?

Positive protection by guarantee mark, indication of origin, patent, design or copyright: No.

Defensive protection according to Patent Law Art. 49a, 81a and 138: Only TK linked to genetic resources.

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none

none

Yes.

Such harmonisation at least grants a universal understanding of the object of protection of sui generis laws. It has to be taken into account that TK does not only arise amongst “indigenous peoples” but also among local communities in industrialised countries.

Knowledge, innovation and customs of indigenous and local communities in developing and industrialised countries, which have been created, improved and adapted to changing requirements and environmental conditions by these communities over generations, and handed down to subsequent generations, often in oral form.

Existing positive and defensive protection is comprehensive.

No need for sui generis positive protection.

yes

no

no

Harmonised approach to simplify global trade

• a)
  at an international level; and
• b)
  at a national or regional level?

both

• (a)
  unique product of or distinctively associated with an indigenous people or local community; and
• (b)
  collectively generated, preserved and transmitted from generation to generation in a traditional context; and
• (c)
  integral to the cultural identity of such indigenous people or local community; and
• (d)
  not known outside that community.

Indigenous peoples and local communities who generate, preserve and transmit TK. The instalment of collecting societies as a platform for state authorities, exploiters of TK and beneficiaries seems to be reasonable.

Right to exploit the TK, to authorize the access and use, to have a fair and equitable share of benefit arising out of the use, to prevent any unauthorized disclosure, use, or other exploitation.

Appropriate legal, policy and/or administrative measures, including measures to prevent willful or negligent harm to the economic and/or moral interests of the beneficiaries, sufficient to constitute a deterrent.

Establishment of a national or regional authority in consultation with the holders of TK. Such an authority could act as a collecting society.

Measures for the protection of traditional knowledge shall not restrict the generation, creation, customary use, transmission, exchange and development of traditional knowledge within and among communities in the traditional and customary context by the beneficiaries. Protection of traditional knowledge shall neither hinder nor encumber the independent discovery or the independent invention of the same knowledge.

Protection of traditional knowledge shall last as long as the traditional knowledge fulfills the criteria of eligibility for protection.

In the interests of transparency, legal certainty and the conservation of traditional knowledge, relevant national authorities shall maintain registers or other records of traditional knowledge.

The provisions shall apply to all traditional knowledge which, at the moment of the provisions coming into force, fulfills the criteria set out.

Protection under this instrument shall leave intact and shall in no way affect the rights or the protection provided for in (other) international legal instruments.

Foreign beneficiaries should enjoy the same rights and benefits as enjoyed by beneficiaries who are nationals of the country of protection.

In instances where TK is located in territories of different states, those states shall co-operate by taking measures that are supportive of and do not run counter to the objectives of TK protection.

See above paragraphs a) to l), in particular e) and h).

Instalment of collecting societies (e.g. as known for benefit-sharing in copyright)