Protection of intellectual property is a central factor in the success of the research-based pharmaceutical industry in Switzerland and an important element in creating incentives for the sector to continue investing in research and the development of new medicines to treat diseases that are currently incurable. Different instruments are used to protect different types of intellectual property.
Medical discoveries are usually protected by patents. The data generated during the process of authorising medicinal products can be protected against use by competitors for a certain time through first applicant protection. And finally, a trademark confers on the holder the right to use that mark to identify goods and services and to use it as they see fit.
Disclosure in return for rights of use
A patent is a protected title granted by the state for a technical invention. In legal terms, an invention is a solution to a technical problem. Inventions are patentable if they are new and not obvious to an expert in the matter and can be exploited commercially. The holder of a patent has a maximum of 20 years during which they can exclude others from exploiting the invention commercially. During this period, third parties can be prevented from, for example, manufacturing, using, selling or importing the invention without permission. In return for this exclusive right, the invention must be explained in exact detail and disclosed publicly. The patent holder can then use the technical solution as an important source of information for further developments.
Protection as an incentive to invest
In addition to patent protection, the research-based pharmaceutical industry can also benefit from first applicant protection. This is a separate form of intellectual property protection granted for confidential data that is independent of patent law. In the pharmaceutical industry, these data are compiled during the course of a clinical trial to demonstrate the safety, quality and efficacy of an active ingredient, a task that is time-consuming and cost-intensive. First applicant protection can provide additional legal protection for the patent holder, provided this person was the first to notify the invention. However, in many situations first applicant protection is the only form of protection available, and thus the only incentive for investment. First applicant protection and its duration are independent of the validity of a patent and the length of protection it provides. First applicant protection obliges the competent authorities to protect the confidential documentation and study results that have been submitted by the first applicant as part of the authorisation process from disclosure and unfair commercial use by third parties.
The most significant role played by the trademark in the pharmaceutical industry is the confidence it generates in doctors and patients, who can be sure that they are obtaining a product that will meet their expectations in terms of quality and provenance.