Facts
ASTA Medica Aktiengesellschaft is the owner of a Swiss patent for a "Process for the production of the new chamomile variety Manzana". Peter Lendi and the Association for Organic Herb Cultivation in the Swiss Mountain Region (VBKB) have obtained a court declaration of the nullity of this patent.
The Commercial Court of the Canton of Bern has declared the patent null and void, as the plant breeding "Manzana" falls under the protection of the Plant Variety Protection Act and is therefore not patentable according to Art. 1a of the Patent Act. In an alternative justification, the court also denied a sufficient inventive step.
ASTA Medica Aktiengesellschaft has appealed the judgment, which was dismissed by the Federal Supreme Court.
Considerations
The Federal Supreme Court has decided that under Swiss law, the granting of a product patent for a plant variety is excluded, regardless of whether the corresponding plant family is listed in the species index. However, the prohibition of double protection between plant variety protection and patent protection does not preclude the granting of derivative substance protection within the meaning of Art. 8 para. 3 of the Patent Act.
The process steps for…