Patents are hugely important in commercial terms as they protect valuable technical information and advances. Direct competitors frequently use their know-how to simply copy inventions—regardless of whether the item in question is a highly-specialized, niche product or an everyday item. This can lead to huge commercial losses, which is why you should always protect your ideas with patents.
What are patents?
Patents are intellectual property rights that relate to technical inventions. After the Patent Office has examined an application, the patent holder is granted the exclusive right to use the patented invention.
In most countries, protection is granted for a limited period of time. In Germany, for example, this is 20 years (Section 16 of the German Patent Act, PatG).
Society, companies and inventors also benefit from patent protection, as patents provide stimulus for new innovations and developments because inventions are made public in exchange for granting a monopoly—which ultimately helps drive technical advancement.
What is patentable?
Certain criteria must be met for a patent to be granted. German (Section 1 (1) PatG) and European (Art. 52 (1) EPC) patents are granted for technical inventions when three criteria have been met:
- Novelty: The invention does not form part of the state of the art
- Inventive step:The invention is sufficiently different from prior art
- Industrial applicability:The invention can be made or used in any kind of industry, including agriculture
The following, in particular, are not patentable: Discoveries, scientific theories and mathematical methods; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers as such (e.g., program code) and presentations of information (Section 1 (3) PatG / Art. 52 (1) EPC).
Where does patent protection apply?
The territoriality principle applies, which means patent protection only applies in the country where the patent was applied for.
Patents that need to be protected in multiple countries can either be applied for individually in every country or a regional application can be filed, if available, such as a European patent application to the European Patent Office. You can also apply for a patent internationally (under the Patent Cooperation Treaty), which offers protection for many countries around the world.
German inventors enjoy priority rights for applications abroad. For example, once registered in Germany or another country, inventors have the option to register a patent abroad within 12 months. These priority rights must be utilized within the time limits and we would be happy to advise you on these matters.
The patent application process: From idea to patent
It usually takes several years for a patent to be granted as the filing and examination process is extensive. Our experienced patent attorneys are here to accompany you throughout the entire process, both in Germany and internationally.
Every patent application is based on through research to verify the novelty of an invention.
- State of the art search/novelty search:Looking for information that could call the novelty of the invention into question
- Nullity search:Looking for information and documents which could be used to challenge a competitor’s patent
- Patent monitoring:Regular searches to monitor relevant filings by third parties
Freedom to operate searches (FTO) are another option that helps determine whether your product can be used in a specific country without infringing any third party rights. FTO searches are therefore carried out independently from a patent application.
Filing a patent application
If applying for a patent in Germany, you must file your application with the German Patent and Trade Mark Office (DPMA) (Section 34 (1) PatG). European patent applications are handled by the European Patent Office (Art. 75 (1) EPC).
Applications must contain the following:
- The name of the applicant
- A request for a patent to be granted which briefly and precisely describes the invention
- One or more patent claims, which state what is patentable that should be protected
- A description of the invention
- Drawings which relate to the patent claims or the description
Each application may only contain one patent/group of inventions that are so linked as to form a single inventive concept.
Examining and granting a patent
First a preliminary examination of the application takes place where compliance with formal requirements and obvious bars to patentability are checked.
Then the examination procedure commences. The examination request must be submitted to the DPMA, for example, within seven years of the date the application was first filed. The patent application will then be published after 18 months; this secrecy period gives the applicant time to further develop the invention or withdraw the application. If the resulting examination by the DPMA is successful, a patent is granted. It is essential to have the application completed by a patent attorney as it may be rejected if it fails to meet the requirements.
Opposition proceedings and revocation actions
In opposition proceedings, a successfully granted patent is reexamined to see if there are any reasons why the patent should not have been granted. If this is the case, the patent may be maintained in an amended form of more limited scope or revoked. Any third party may give notice of opposition.
However, strict deadlines apply; opposition to German/European patents must be filed within nine months of publication in the Patent Gazette of the DPMA/European Patent Office that the patent has been granted.
Mr. Thielemann, Mr. Bartels and Mr. Gerbaulet have extensive experience in this area having represented many German and international clients in opposition proceedings and revocation actions.
RGTH can assist you with filing a notice of opposition against third party patents as well as defending your patents against opposition proceedings brought by third parties, so don’t hesitate to get in touch.
Important questions about patent applications
How much does it cost to apply for a patent?
The cost of filing a patent application depends on the scope of the application and the number of countries in which protection is sought. There is no one answer here. However, we can usually provide an initial cost estimate after our first meeting or after viewing any technical documentation.
What should you do in the event of patent infringements?
Patent rights can be enforced in various ways if a patent holder learns that a third party may have infringed their patent. Claims for injunctive relief, damages and destruction may be filed with the German Regional Courts (Landgericht) as part of a patent infringement claim. As legal proceedings frequently take some time, interim measures may be granted by injunctive relief to remedy the situation.
Can patents be sold?
Patent holders can either sell the entire patent or license its use. However, when licensing or selling patents, contractual negotiations can often prove to be difficult, especially regarding costs. Our experienced patent attorneys are here to accompany you throughout the entire process—all the way up to final sale or licensing.
Our patent services
As patent attorneys, we assist our national and international clients with all areas of intellectual property.
If you are applying for a patent abroad, RGTH can provide expert, in-house support from native speakers from the very start. They will develop appropriate strategies and support you through the entire process and portfolio. RGTH works with experienced foreign associates in several countries.
In addition to a high level of specialist qualifications, our patent attorneys also have extensive experience in their specialist areas. We also have the wide-ranging qualifications required to efficiently and expertly tackle interdisciplinary matters.
- National German, European and international patent applications (such as PCT applications)
- Representation in opposition proceedings held before the DPMA (DPMA opposition) and the European Patent Office (EPC opposition)
- Representation in appeal proceedings held before the DPMA (DPMA appeals) and the European Patent Office (EPC appeals)
- Representation in appeal proceedings and revocation actions held before the German Federal Patent Court (BPatG) and German Federal Court of Justice (BGH)
- Bringing infringement actions before the ordinary courts in Germany
- Patent searches
- Licensing agreements for patents
- Advice and representation in the event of employee inventions
- Patent-related due diligence advice in the event of M&A
- Preparing patent strategies
- Patent management advice
- Expert opinions for patent infringement
- Freedom to operate reports