Patent Law

Patent Law

Patent law is a type of industrial property rights, which in turn are part of the intellectual property rights. Intellectual property rights are intellectual property rights and are divided into copyright and industrial property rights.

 

Intellectual property rights are independent of ownership rights. For example, if you buy a CD, you only acquire ownership of the CD itself. However, any software contained on the CD cannot be used or reproduced without restriction, but can only be handled in accordance with the applicable license terms.

 

Copyright is regulated by the German Copyright Act (UrhG) and is a highly personal right, the holder of which can only be a natural person. It is created informally, requires no registration, and is valid for 70 years after the death of the author. Furthermore, it cannot be transferred; at most, the right to use copyrighted material can be acquired.

Industrial Property Rights

 

Industrial property rights are created through registration in a register and are freely transferable. In addition to natural persons, legal entities such as companies or associations can also be owners. Furthermore, rights of use can be granted, for example, through a license with a corresponding license fee. Industrial property rights include patent law (PatG), design law (DesignG), and trademark law (MarkenG). A special sub-form of patent law is utility model law (GebrMG), which was known as the Design Model Act until its renaming in 2014.

When is a patent granted?

 

Patents are granted for inventions in all fields of technology. According to Section 1 of the Patent Act, an invention is patentable if it is "new," involves an "inventive step," and is susceptible of industrial application. According to Section 3 of the Patent Act, an invention is considered "new" if it does not belong to the "state of the art." This includes all knowledge that was made available to the public prior to the application through written or oral description, through use, or in any other way. This simply means that the invention has never been published to that extent before.

 

According to Section 4 of the Patent Act, an invention is considered to be based on an “inventive step” “if it does not follow in an obvious manner from the state of the art for a person skilled in the art”, i.e. if it is not immediately obvious to an expert.

 

“Industrial applicability” is defined in Section 5 of the Patent Act and requires that the object can be manufactured or used in any commercial field.

Product and Process Patents

 

In patent law, a distinction is made between product patents and process patents. Product patents can be granted for equipment and materials, for example, whereas process patents relate to manufacturing or working processes. The requirements for protection are set out in Sections 1-5 of the Patent Act and include the aforementioned requirements of novelty, inventive step, and industrial applicability. Furthermore, the invention must be sufficiently developed and described to ensure its functionality.

 

Inventions excluded from patent protection are listed in Sections 1 (3), 2, and 2a (1) of the Patent Act. For example, patents cannot be filed for discoveries of scientific theories, aesthetic creations, human cloning processes, or other inventions that, if applied commercially, would violate public policy or morality.

 

Furthermore, Section 1a of the Patent Act contains provisions concerning the human body. For example, a mere discovery of a component of the human body cannot be patented, whereas a process for isolating a component, such as a gene sequence, constitutes a patentable invention, provided the process is industrially applicable.

Patent Protection

 

Patent protection arises through entry in the register of the German Patent and Trademark Office (DPMA) and publication in the Patent Gazette. However, a substantive review of the requirements for protection is first carried out, which is why up to two and a half years can pass between the patent application and the patent grant.

 

Utility Model Law (GebrMG) offers a solution for this. Often, both a patent and a utility model are filed for inventions simultaneously. The utility model is intended to protect the invention during the period between the patent application and the patent grant. In principle, the same protection requirements apply as for a patent application; however, the application examines only the formal requirements under Sections 4, 4a, and 4b of the GebrMG, not the substantive requirements. This makes registration faster and significantly less expensive than with a patent.

 

An examination of the substantive requirements for protection only takes place when a cancellation request is filed under Section 15 of the Utility Model Act. The utility model would then be retroactively canceled. Registration is also done with the German Patent and Trademark Office (DPMA), and the term of protection is 10 years from the filing date. Furthermore, the legal effects of the protection are largely the same as those of a patent. These will be discussed later.

Exceptions

 

An exception to this time-limit between patent application and grant applies to biotechnological inventions and processes. For these, a utility model cannot be filed, but only a patent.

Duration of Protection

 

According to Section 16 of the Patent Act, the term of protection for a patent is 20 years from the date of application. This relatively short period takes into account the rapid changes in research and is intended to allow for the use of the patented subject matter in the near future, for example, for research purposes.

Effect of Patent Protection

 

The effect of patent protection is primarily defined in Sections 9 and 139 of the Patent Act (PatentG). Thus, only the patent holder has the right to use the patented invention within the framework of applicable law, for example, to sell the object, manufacture it, or apply a process and sell the resulting products. Furthermore, only the holder may grant licenses. This is prohibited to any third party.

 

Section 12 of the Patent Act regulates the case where someone has already put the invention into use in Germany or taken the necessary steps to do so prior to the filing date. In this case, patent protection is not effective, and the person is authorized to use the invention for the needs of their own business.

Infringement of a Patent

 

In the event of a violation of law, a claim for injunctive relief and damages may arise. An injunction can be enforced in the form of a warning even without fault on the part of the infringer. This is also possible if an infringement is threatened for the first time.

 

Fault means that an act is committed intentionally or negligently. Negligence is defined in the German Civil Code (BGB) as "failure to exercise the due care required in traffic."

 

Fault is necessary for a claim for damages. Therefore, anyone who intentionally or negligently infringes a patent is obligated to compensate the patent holder for the resulting damages. The amount of damages is usually calculated based on the amount the infringer would have had to pay as reasonable compensation had they obtained a license to use the patented subject matter.

 

In addition, the patent holder may, pursuant to Sections 140a and 140b, demand the destruction or surrender of the relevant items as well as information about their manufacture and distribution channels. Exceptions to these legal consequences are defined in Section 11. For example, acts performed in the private sphere for non-commercial purposes are excluded from the above-mentioned effects. An infringement is therefore based on a commercial application of the patented subject matter.

Transferability of a Patent

 

Transferability is unlimited under patent law, meaning that the patent holder can grant licenses at will. It is possible to allow anyone to use the invention for a reasonable fee. This is recorded in the register and published in the Patent Gazette. If the patent holder agrees to this, their annual fee for patent protection, which they must pay annually without being asked to do so, is halved.