Junction (utility model)

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The diversion is a utility model application from the owner of an earlier patent application relating to the same invention , together with the declaration that the application date for the utility model will be used for the patent application .

History

Utility model auxiliary registration

The regulation that a utility model application can be "branched off" from a patent application was newly introduced into utility model law by the Utility Model Amendment Act and came into force on January 1, 1987. According to the old utility model law applicable to date, the patent applicant had the option of filing a so-called utility model auxiliary application together with the patent application, which was only to be entered in the register kept at the patent office for utility models (so-called utility model register) when the patent application was made "Done". The “settlement” of a patent application could mean its rejection or refusal (in opposition proceedings), for example due to lack of patentability, etc., but also its granting of a patent. Section 2 (6) sentence 1 of the old version of the GebrMG (old version) read: "If the applicant applies for a patent for the same object, he can request that the entry in the utility model register be made only when the patent application has been completed”.

disadvantage

The disadvantage of the earlier regulation described was the fact that the patent applicant - if necessary - had to apply for the utility model auxiliary application and already had to pay half of the application fee provided for a full utility model application, although at this point in time he regularly did not know whether his patent application was the intended one Patent or would be rejected. First and foremost, a utility model auxiliary application made sense for the patent applicant in the case of the latter variant, because the utility model auxiliary application could secure him protection if the patent application was (later) rejected or failed. However, it was possible for the applicant to have the utility model auxiliary application registered as a full utility model in the utility model register even if the patent was granted . This enabled him to secure at least one utility model protection for his invention in the event that the patent should later be destroyed - for example because of insufficient inventive step. The old version of the Utility Model Act said nothing about whether the utility model auxiliary application could only be submitted at the same time as the patent application or also before or afterwards. As a rule, however, was by the applicant as the safest way of the simultaneous chosen submission.

Legal basis according to current utility model law

The legal basis for branching off a utility model application from an earlier patent application is § 5 GebrMG. According to Paragraph 1 Clause 1 of this provision, if the applicant “has previously applied for a patent for the same invention with effect for the Federal Republic of Germany ”, “with the utility model application, the declaration can be made that the relevant filing date for the patent application has been claimed becomes".

The requirements in detail

Previous patent application

The applicant seeking the diversion must have previously applied for a patent for the same invention . This can be a national patent application under German Patent Law or a European or international patent application for which the extension of protection to the Federal Republic of Germany has been applied for.

Declaration of diversion (claiming the filing date of the patent application)

The declaration that the relevant filing date for the earlier patent application will be used must be made in writing . The written form results from the general requirements of the patent granting and utility model registration process. Since the declaration “with the utility model application” must be submitted, the documents for the utility model application (application text etc.) must always be submitted at the same time.

Deadlines

According to Section 5, Paragraph 1, Clause 3 of the GebrMG, the right of diversion according to Clause 1 of the provision in question "can be extended to two months after the end of the month in which the patent application is completed or any opposition proceedings are completed, but no longer than the expiry of the tenth year after the filing date of the patent application ". The exercise period, which is limited to a maximum of ten years, is explained by the term of a utility model, which in accordance with Section 23 (1) of the GebrMG is a maximum of ten years. If the patent application is dealt with at an earlier point in time, the two-month period after the patent application has been dealt with or after any opposition proceedings have been concluded. The time limit is intended to give the applicant a reasonable period of time to consider a decision on a possible utility model application (diversion). During this period, he or she can adjust to the outcome of the patent granting procedure or any opposition proceedings.

Effect of the diversion statement

Filing date of the patent application

The filing date of the earlier patent application applies as the filing date and priority of the branched utility model application due to the declaration of claim according to Section 5 (1) sentence 1 of the GebrMG. The beginning of the term of the utility model also corresponds to the filing date of the earlier patent application. The duration of the protective effect of the utility model, however, is limited to its remaining (maximum) remaining term, calculated from the time of the diversion declaration (declaration of claim).

priority

According to Section 5, Paragraph 1, Clause 2 of the GebrMG, a "right of priority claimed for the patent application ... for the utility model application is retained". This means that the relevant point in time for assessing novelty, inventive step and commercial applicability is not only for the earlier patent application but also for the branched utility model application on the priority date before the filing date of the earlier patent application (e.g. the filing date of a foreign patent application by the same applicant relating to the same invention).

Implementation of the procedure

After the applicant has submitted the declaration of diversion (Section 5, Paragraph 1, Clause 1 GebrMG) with the utility model application, "the patent office requests him to provide the file number and the date of filing" (of the earlier patent application) "within two months of receiving the request to submit a copy of the patent application ”, Section 5 (2) sentence 1 of the GebrMG. "If this information is not provided in good time, the right according to" § 5 "Paragraph 1 Sentence 1", § 5 Paragraph 2 Sentence 2 GebrMG is forfeited. If the copy of the earlier patent application is written in a foreign language, Section 8 of the Utility Model Ordinance (GebrMV) stipulates that "the copy of the foreign-language patent application (Section 5 (2) of the Utility Model Act) ... is to be accompanied by a German translation", "unless , The application documents already represent the translation of the foreign language patent application ".

See also

Individual evidence

  1. ↑ Law amending the Utility Model Act, August 15, 1986 (Federal Law Gazette I, p. 1446 ff)
  2. ↑ Utility Model Act in the version of January 2, 1968 (Federal Law Gazette I, p. 24), amended by the Eighth Criminal Law Amendment Act, passed by the Bundestag on May 29, 1968
  3. ↑ Reimer-Trüstedt, Patent Law and Utility Model Law, 3rd edition, Cologne, Berlin, Bonn, Munich 1968, p. 1869
  4. ↑ Reimer-Trüstedt, (individual references 3), p. 1868
  5. ↑ Benkard-Schäfers, Patent Law, Utility Model Law, 10th edition, Munich 2006, Rn 4 to § 5 GebrMG
  6. ↑ Benkard-Schäfers, (individual replies. 6), marginal number 5 to § 5 GebrMG
  7. ↑ Decisions of the Federal Patent Court (BPatGE), Vol. 31, pp. 43, 47
  8. ↑ Benkard-Schäfers, (individual replies. 6), marginal number 6 to § 5 GebrMG
  9. ↑ Benkard-Schäfers (individual replies. 6), marginal number 7 to § 5 GebrMG
  10. ↑ BPatGE, Vol. 31, pp. 217, 219
  11. ↑ Ordinance on the implementation of the Utility Model Act (Utility Model Ordinance - GebrMV) of May 11, 2004 (Federal Law Gazette I, p. 890), amended by Article 3 of the Ordinance of September 26, 2006 (Federal Law Gazette I, p. 2159)

literature

  • Georg Benkard , Patent Law Utility Model Law, 10th edition, Munich 2006 (quoted: Benkard editor)
  • Eduard Reimer , Patent Act and Utility Model Act, 3rd ed., Cologne, Berlin, Bonn, Munich 1968 (quoted: Reimer editor)