Legal actions against expired patents

Actions against expired patents: is this possible?

Have a look at this case of the Federal Supreme Court, Judgment of 21.07.2022 – X ZR 110/21 –

No need for legal protection for action against expired patent

The Federal Supreme Court dealt with the question under which conditions a patent that is no longer in force can be attacked with an action for revocation.

The defendant was the proprietor of a German patent. During the first instance proceedings before the Federal Patent Court, the patent suit lapsed due to the defendant’s inability to pay the annual maintenance fee (Sec. 20 Patent Act). The Patent Court then dismissed the action as inadmissible.

The decisive factor of this case is that the contested patent was no longer in force.

But can property rights become expired?

Industrial property rights are limited in time. Only trademark protection can be renewed in Switzerland as often as desired. Patent protection can be maintained for a maximum of 20 years, design protection for a maximum of 25 years. Copyright is valid for up to 70 years after the death of the author or 50 years in the case of computer programs.

Even without registered property rights, you are not necessarily defenceless against counterfeiters. If necessary, the Federal Act against Unfair Competition (UWG) can help you. This law protects against business practices that are contrary to good faith or morality. Unfair and unlawful are, for example, actions of a competitor that may cause confusion with the products of another and thus mislead customers. If these conditions are met, action against imitation and counterfeiting can be taken under the Unfair Competition Act.

Can you apply for a patent again after its expiring?

The monopoly status of a patent or utility model is limited in time. The maximum term of a patent is 20 years (for authorised medicines or plant protection products even up to 25 years) and that of a utility model 10 years. Once a patent or utility model has exceeded the maximum term, the content described in it becomes the general state of the art forever, and therefore it cannot be applied for again in the same form.


However, patent law is not so easy to explain in a short form. There are many regulations and they all can apply to your case. Make sure to book an appointment with our patent law experts. We give you our expertise. Trust us.