The protection of intellectual property rights perhaps is the most advanced area of globalized law today. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO), the many agreements under the auspices of the World Intellectual Property Organization (WIPO), including particularly the Berne and the Paris Conventions and chapters of more recent comprehensive cooperation and preferential trade agreements provide a dense normative framework based upon and within which domestic law operates and deploys its transnational effects. There is a long history behind this evolution, much of which took place in Switzerland and was supported by efforts made in that country and within its legal culture. It accompanied the country becoming a leading technology and innovation centre that relies extensively on intellectual property protection both at home and abroad. Switzerland ranks among the top countries in indexes for its innovation policy and results. For the tenth consecutive year, the WIPO Global Innovation Index (GII) listed Switzerland as the leading country in 2020 based on 80 indicators that underscore the importance of the central component of its overall innovation policy: intensive use of intellectual property protection. Switzerland remains first in the category of innovative outputs and ranks second in innovative inputs. It ranks first among the 49 high-income group economies, and first among the 39 European economies (https://www.wipo.int/edocs/pubdocs/en/wipo_pub_gii_2020/ch.pdf).
Switzerland has a long tradition in the field of intellectual property and related scholarship. Scholars mainly have dealt with the field from the angle of domestic private and commercial law, based upon which they engaged in discussing issues in comparative terms. Some of them are alluded to in other clusters of the Anthology, in particular on Swiss Law and Economics and Information Law. There is a substantial scholarship on the subject in English language which up to 2005 can be found in the cluster of the Anthology on the Swiss Law Bibliography, p. 232-250. Studies refer ancillarily to international agreements, as domestic, European and international law no longer can be separated, particularly in the area of intellectual property law. Important figures and the tradition of private law in the field will be the subject of a separate cluster on Swiss intellectual property law and are partly dealt with by the clusters on. This cluster focuses on intellectual property as a matter of public policy from the angle of international law and the process of European integration and globalization. It is dedicated to establishing intellectual property as a proper field and chapter of public international and European law. It relates to the clusters on International Law, Europeanization and Americanization and confirms some of the findings discussed in these clusters.
I. Switzerland and the Advent of International Intellectual Property Law
At the outset of this evolution, Switzerland emerged as the sole and first liberal democracy in Europe following the 1848 revolutions. The country adopted its Federal Constitution on September 12, 1848, largely modelled after the two-chamber system of the United States. It laid the structural foundations for a research and innovation-based economy. With much foresight, the government at that time was dedicated to fostering the creation of appropriate framework conditions for emerging international trade in Europe. While patent and copyright protection in the country was very controversially debated at that time and only introduced in response to foreign pressures, it is remarkable to note that the Swiss Federal Council supported initiatives for negotiating and creating international treaties to this effect. Patent protection in the country was reluctantly introduced to avoid Swiss industries losing patent protection abroad under the 1883 Paris Convention for the Protection of Industrial Property. The government concluded bilateral agreements with neighbouring countries, including in particular the treaty on mutual recognition of intellectual property rights with Germany, concluded in 1892, which is still operational and grandfathered under WTO law. Following the Paris Convention, the Berne Convention for the Protection of Literary and Artistic Works of 1886 was negotiated in Berne under the auspices of the Swiss government. Copyright protection met with strong resistance in the country at that time. In response to pressure exerted by France, a bilateral agreement was signed in 1864 that protected French but not Swiss works in the country due to lack of federal legislation. The Confederation only obtained constitutional jurisdiction to legislate in 1874. An initial, weak Copyright Act was adopted in 1884, just in time for the conference on the Berne Convention.
In 1893, the Bureaux Internationaux pour la Protection de la Propriété Intellectuelle (BIRPI) was founded and located in Berne, starting out with seven staff members. All of its directors were Swiss citizens appointed by the Federal Government up until 1963. BIRPI was an international agency under Swiss law. It contributed to the internationalization of intellectual property and to norm diffusion in Europe and worldwide. It is here where Swiss brainpower in the area of intellectual property was located at that time, in a small but highly professional environment at Helvetiastrasse in Berne. BIRPI left Berne and moved to Geneva in 1960. In 1970, it became the World Intellectual Property Organization (WIPO) under the auspices of the United Nations. As of 1963, general directors were appointed internationally. Swiss citizens assumed important functions within the organization, salient among which were Joseph Voyame, François Curchod, Philippe Baechtold and Alexandra Grazioli − all former staff members of the Swiss Federal Administration. The numbers of Swiss personnel and Swiss influence have been decreasing however.
Today the WIPO is an organization with universal membership. Much like the UN and other related agencies, it has a system of contributions by Member States but it mainly generates income from international registration of patents, trademarks and industrial designs under the Patent Cooperation Treaty and the Madrid, Lisbon and Hague Agreements. In 2020, the Organization administered 26 international agreements (https://www.wipo.int/treaties/en/). Switzerland is currently party to the WIPO treaties with the exception of two agreements, which is a testament to the importance of IP for the country. It has actively participated in the inception of all the relevant treaties. Today, a comparable effort can be observed in the evolution of the law of information which partly covers intellectual property law, but goes beyond in developing an appropriate framework for cyberspace and the internet which had its origins at CERN (Organisation européenne pour la recherche nucléaire/ European Organization for Nuclear Research) and today is also dealt with by the Geneva Internet Governance Forum (see the Cluster on Information Law, particular Rolf H. Weber and Thomas Schneider, Internet Governance and Switzerland’s Particular Role in its Processes, and generally Jens Drolshammer & Rolf H. Weber, Wie das Recht auf Reisen geht 179-187 (Berne: Staempfli 2019).
The WIPO, over the years, has largely lost its connotation of Swiss legal culture, today being principally dominated by Anglo-American and European Union law − an influence and thinking to which Switzerland’s strong research-based industries, including the pharmaceuticals sector in particular, fully subscribe. The organization has been exposed to the increasing influence of emerging economies and developing countries, and thus has been centrally involved in the process of finding an appropriate balance of differing interests within in the system. Profoundly interested in the legitimacy of the system, Switzerland actively contributed to this change process both within and outside of WIPO.
The BIRPI and early efforts by the Swiss government translated into a strong presence of a non-governmental organization in the field. The Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI) was founded in Brussels in 1897, which in 1925 was resuscitated in the wake of World War I due to Swiss efforts and has had its international headquarters in Zurich ever since. Swiss Patent lawyer Eugen Blum rebuilt the Association as of 1924, since which time Swiss intellectual property practitioners and academics have played a leading role in the life of the Association. Annual conferences attract and are attended by hundreds of colleagues. The work of the AIPPI had been influential in defining the work agenda of the WIPO for many years.
II. The Impact of GATT and the World Trade Organization
Levels of intellectual property protection in different countries tend to be commensurate with their social and economic development and the significance of their role in research and development. Switzerland, as an industrializing country, was not keen at the outset to adopt high standards, particularly in the field of patent and copyright law. The development of domestic intellectual property, forming part of economic law, will be discussed in a separate cluster. Yet it is important to note that its evolution was always subject to foreign pressure in the area of patent and copyright law. While in domestic law the focus was on trademarks, the country’s patent system and copyright protection remaining weak for a long time, Switzerland eventually became an ardent defender of strong patent protection mainly due to its important pharmaceutical and chemical industries. Such policy is reflected in the country’s contribution to subsequent revisions of the Paris Convention, and subsequently to efforts made for the General Agreement on Tariffs and Trade (GATT) during the Uruguay Round of Multilateral Trade Negotiations, and in negotiating preferential trade agreements in the new century.
The negotiations for the WTO TRIPS Agreement represent a landmark in international intellectual property protection. Switzerland was actively involved in negotiating the agreement, contributing comprehensive proposals co-ordinated and drafted by the authors of this cluster. Negotiations were jointly led by the Federal Office of Foreign Trade (BAWI, now SECO) and the Federal Office for the Protection of Intellectual Property (BAGE, now IPI (Eidgenössisches Institut für Geistiges Eigentum/Institut fédéral de la propriété intellectuelle) and supported by the Customs Administration at the Department of Finance. Intellectual property no longer could be dealt with in isolation, having become an important component of international economic law and policy closely intertwined with international trade regulation. Switzerland contributed in particular to the introduction of protection of trade secrets. It took into account the proliferation of protection of geographical indications, which are of considerable potential importance for developing countries as well. In parallel, negotiations were conducted with the European Communities on the EEA (European Economic Area) Agreement, which were completed in 1992 but the deal was rejected in a Swiss referendum on December 6, 1992. In the new century, the intellectual property chapter in the Free Trade Agreement negotiated with China by Felix Addor, concluded in 2012, made an important and globally recognized contribution to the advanced standards of protection that eventually informed the international debate on the subject. Intellectual property protection, however, also turned out to be a major stumbling block in concluding free trade agreements, in particular with India on the issue of ever-greening of pharmaceutical agents. The two countries refrained from litigating the matter at the WTO under the TRIPS Agreement. Finding appropriate levels of protection in alignment with the broader policy goals of social and economic development, including particularly the 2105 Sustainable Development Goals (SDGs), has been a constant trait of international policy making. This has also informed Swiss technical cooperation efforts in the IPI and Seco programs, assisting countries with building their own intellectual property systems. It also informed Swiss academic research related to the topic.
It is important to note at this point that policies of advancing levels of protection have been subject to critical scrutiny by non-governmental organizations defending developing country and environmental interests, particularly Green Peace, Alliance Sud, Swissaid, Pain pour le prochain and Public Eye. Miges Baumann and Richard Gerster in particular were ardent defenders of developing country interests such as biodiversity through patent protection of plant and life forms and traditional knowledge. These efforts offset strong claims made by industry groups and associations like Economie Suisse, represented by Thomas Pletscher and Otto Stamm, allowing the government to carefully balance out interests in international negotiations while insisting on the importance of advanced levels of protection for its own research-based and export-oriented economy. Negotiating mandates and results transposed into national legislation and the acceptance of new international treaties may, depending on the stakes involved, be subject to referendum in addition to Parliament’s approval. For a complex package of negotiating issues like the Uruguay Round, for example, information and informal consultations of the interested circles were held through task forces throughout the whole Round.
III. The Impact of European Integration
In a regional context, Switzerland was active in establishing the European Patent Organisation (EPO) in 1977, which hosts the European Patent Office in Munich on the basis of the European Patent Convention (EPC). The Convention allows the granting of bundled patents within its member States. The EPO was an effort to bring about regional integration outside the European Economic Communities, which did not have jurisdiction to directly regulate intellectual property for a long time. EPO was also the main motivation to include the principality of Liechtenstein in Swiss patent law and jurisdiction, based upon the Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection (Patent Treaty) of December 22, 1978.
The Directors of the Swiss Intellectual Property Office (BAGE) and now IGE/IPI, Paul Brändli, Jean-Louis Comte and Roland Grossenbacher, were actively involved in their capacity of EPO Administrative Board members in developing the operation, being keen to keep Switzerland as a non-Member of the European Economic Community in the loop. Paul Brändli was President of the European Patent Office from1985 to 1995. Other important positions in Munich were held by Swiss staffers, including Pietro Messerli in particular, Vice-President of the European Patent Office and Head of its Boards of Appeal.
Over time, EU jurisdiction in intellectual property matters increased, first in case law and subsequently in developing directives and regulations, mainly in the field of trademarks, designs, patents, copyright protection and geographical indications. Efforts to harmonize patent law and establish jurisdiction to centralize the reviewing of granted patents lasted many decades, only being completed in 2012 in the combining of the law of the EPO and of the European Union. The agreement provided for an independent court of law addressing complaints from all EPO member states. The European Court of Justice, however, considered the arrangement incompatible with its own prerogatives in its advisory opinion 1/09 of March 8, 2011. The ECJ ruling induced Switzerland to set up its own centralized patent court at the Federal Administrative Law Court in St. Gallen, which has been competing with Member State jurisdictions ever since, seeking to develop a niche in the European patent litigation market.
The increasing influence of European Union law in the field of intellectual property has impacted Swiss law. Intellectual property is yet another example of the shift from an active role in law and policy making, starting with the Paris and Berne Conventions in the 1880s, to a role confined to essentially unilaterally adopting standards developed within the European Union by the Commission, the Council and the European Parliament. Swiss copyright law has been largely framed along the lines of European law. The same holds true for trademark law; both acts were adopted in 1992 shortly before the rejection of the EEA Agreement on December 6 of that year. Yet there still is no formal agreement on intellectual property that aligns standards, except for implications of the 1972 Free Trade Agreement and the protection of indications of source (Herkunftsangaben/geographical indications) in the Agreement on Agriculture. Legal culture in the field has changed. Creative international work still is possible in the WIPO, the WTO and free trade agreements, but the European theatre is dominated by the EU, which does not allow non-member States to play an active role. Due to the right to most-favoured nation treatment under WTO law, Swiss exporters benefit from equal intellectual property protection in third countries in most areas. To retain a level playing field with the EU however, particularly regarding geographical indications, Switzerland either actively uses the bilateral avenue with individual third countries and regions or works with the other EFTA (European Free Trade Association) members in concluding treaties to obtain the same level of protection obtained by the EU, to the extent possible. While independence and sovereignty in the 19th century allowed Switzerland to play an impressing active role, insistence on sovereignty and independence today ties the country’s hands and calls for a rethinking of its position and role in Europe in the 21st century. The field of intellectual property is an example in point.
IV. Courts of Law, international intellectual property and litigation abroad
Swiss courts of law have been exposed to international and European developments in intellectual property law over the years. While mainly applying domestic law in ordinary courts and trade courts of the larger Cantons (Handelsgerichte), international law has been an important source of law in the country. The doctrine of direct effect and the principle of consistent interpretation with international law allow courts to take treaty law into account and even override inconsistent domestic law. A comparative approach in the field has been of equal importance, and the Swiss Federal Supreme Court has repeatedly referred to the law of neighbouring countries in addressing issues arising from novel technological developments, such as cable television at the time. However, the Federal Supreme Court has been reluctant to interfere with trade policy and Parliament, and principles expounded in addressing parallel trade in the fields of patents, trademarks and copyright have been informed by economic interests rather than free movement of goods. Eventually, non-membership of Switzerland in the EU translated into considering and following evolutions in EU law in interpreting and applying Swiss intellectual property law. (Cf also the clusters of the Anthology on International Law and the Federal Supreme Court and Constitutional Law in an International Context.)
Swiss companies defending intellectual property rights abroad have been involved in patent litigation in leading international landmark cases, without much success. Invoking the TRIPS Agreement before Indian courts of law did not bring about higher levels of patent protection. Likewise, the first recourse ever to an investment protection and promotion agreement did not bring about protection for tobacco related trademarks in the Republic of Uruguay. At the same time, it is interesting to observe that Switzerland has not reverted to actively using WTO dispute settlement in defence of the country’s interests in the field.
V. Swiss Contributions to Legal Research
For a long time, international intellectual property was dealt with within a close epistemic community of commercial and corporate lawyers. This community also dealt with international agreements in parallel with its focus on domestic law and comparative studies. Alois Troller was an eminent scholar and legal philosopher in the field who wrote about multilateral agreements in his work Die mehrseitigen Völkerrechtlichen Verträge im internationalen gewerblichen Rechtsschutz und Urheberrecht (Basel: Verlag für Recht und Gesellschaft 1965). Yet, in spite of the fact that the Paris and the Berne Conventions represented the first multilateral agreements affecting trade, the field was hardly noticed by the community of public international law. For a long time, discipline on expropriation in customary international law did not apply to intellectual property, nor did early agreements on investment protection (BITs). It is only with the advent of the TRIPS Agreement, more recent investment protection agreements and subsequent dispute settlement mechanisms that intellectual property moved to centre stage in international economic law, and today is addressed in close context with trade regulation and investment protection.
Much of this convergence is also due to academic efforts in teaching and research. The first monograph on the TRIPS Agreement was authored in Switzerland by Alesch Staehelin, Das TRIPs-Abkommen: Immterialgüterrechte im Lichte der globalisierten Handelspolitik 2nd Edition (Berne: Staempfli 1999). The World Trade Institute at the University of Berne, which led extensive research as a national focal point on trade funded by the Swiss National Research Foundation from 2007-2019 (NCCR International Trade Regulation), and in other cooperation projects funded by the Swiss Government, laid important foundations in squaring different fields and integrating intellectual property protection into the realm of public international law. Major contributions to regulating biotechnology were prepared for the International Law Association. Efforts were made to bring about legal disciplines for the protection of traditional knowledge on the basis of disciplines of unfair competition law. The first comprehensive case book on international intellectual property protection, published in 1999, was conceived, and contributed to, from a US, European and Swiss perspective. It accompanied new courses on an emerging field of increasing interest to students. Four following editions have been published, which have been widely used in the United States and worldwide: Frederick M Abbott, Thomas Cottier, Francis Gurry, International Intellectual Property in an Integrated World Economy 4th edition (Frederick MD: Wolter Kluwers 2019). It is at the WTI where the relationship of intellectual property and trade regulations was explored in Thomas Cottier, Petros Mavroidis, Marion Panizzon, Simon Lacey (eds), Intellectual Property: Trade, Competition and Sustainable Development, Ann Arbor University of Michigan Press 2003), Thomas Cottier, Trade and Intellectual Property Protection in WTO Law: Collected Essays (London: Cameron May 2005) and in the casebook by Thomas Cottier and Matthias Oesch, International Trade Regulation: The Law and Policy in the WTO, The European Union and Switzerland (Berne, London: Cameron May & Staempfli 2005), and addressed by several authors in Thomas Cottier & Krista Nadakavukaren Schefer, Encycopedia of International Economic Law 516-547. The foundations of international law of intellectual property were expounded in the German language by Thomas Cottier and Christophe Germann, Bedeutung und Wirkung der Staatsverträge im Immaterialgüterrecht, in: Roland von Büren and Lucas David (eds.), Schweizerisches Immaterial- und Wettbewerbsrecht Part I/1 Allgemeiner Teil 2nd enlarged edition, 35-122 (Basel, Geneva, Münich: Helbling & Lichtenhahn 2002) and in related commentaries: Thomas Cottier, Pierre Véron (eds.), Concise International and European IP Law: TRIPS, Paris Convention, European Transfer of Technology, 3rd edition (Kluwer Law International 2015). And finally, it is at the WTI where the main efforts at fully integrating intellectual property into the system of international law are contributed to.