Patent Law Office

Dr. Ernst-Peter Heilein

  • Intellectual Property
  • Gewerblicher Rechtsschutz
  • Propriété Intellectuelle

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Patent Protection

Subject matter

The patent act protects inventions which are susceptible of industrial application provided that they are new and based on an inventive step. For the grant of a patent and as requirement for the protection the invention must be filed at the German Patent and Trademark Office. Although for the beginning of the duration of protection of 20 years the day after the application is important at this time there does not yet exist an effective protection for the functional principle in its practical realization. Claims for discontinuance and for damages against a patent infringer are only possible as soon as the patent is granted; before this there is only a right for indemnity for the time beginning on the day of notification that there is a possibility to inspect the files of a patent application. The filing documents must disclose the invention properly and fulfil certain formal requirements for the granting procedure. The payment of the fee is here at least included. Other fees are due from the third year of the filing date for each following year. The fees which are graduated according to the amount for the individual years should oblige the applicant to examine whether the maintenance of the filed patent is still profitable.

The term of invention

In the patent act the term of invention has a main importance, which, however, is in it not defined. However, from the different efforts in legal practice and literature for the definition it can be understood that the invention must represent “a directive for technical actions”. Furthermore it is important that the invention can not be derived from the state of the art, the solution must represent “an inventive step” and must distinguish the inventor by “technical creativity”. For the legal practise this criteria is to be understood as a requirement of “a creative activity exceeding the normal capacities of a person skilled in the art”. The requirement of the technical character of the invention is seen as main criteria for limitation to other intellectual activities. Discoveries, aesthetical conceptions of forms and not technical operation instructions are not covered by the protection by patents. The limitation of protection by patents on the technical field can have the consequence that important intellectual performances of high economical value are not taken into consideration if they are not conferred a technical character. Particularly regarding computer programs there have been thoughts of omitting this requirement. The legal practise maintained the requirement of the technical character of an invention but was also of the opinion that programs are not untechnical and cited recently that the answer to the question if a patent application concerning a program for data processing installations which according to § 1 para 1 PatG is technical requires an evaluating consideration of the object defined in the patent claim.