Applicant for a property right

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In the everyday understanding of the term, the applicant for a property right is the owner of the property right application and has all rights to it. In the legally precise understanding of the term “applicant”, however, this person only has the right to conduct the associated registration process, while other persons can have the material rights.

Overview of patent applicants

Patent registrations (as well as registrations for other types of property rights - utility model registrations, trademark registrations, design registrations) are intangible goods which , after their creation, are largely subject to the civil law property system . They have one or more owners , are assets and can be the basis of contracts, other rights and obligations and lawsuits. In addition, they can or must be designed. In the patent granting procedure , provisions on patent applications must be made. Following the conventional ownership system, the owner would be entitled to dispose of this a priori.

Since, however, with the subject of industrial property rights, for example a technical invention of a patent application, the material ownership relationships are not always obvious, especially when the rights arise, and the associated procedures, such as the patent granting process, should not be delayed by property disputes, the person filing the application - the “applicant” - granted by law the right to conduct the patent granting process so that these proceedings can be conducted on a secure basis.

The substantive owner of a patent application is referred to in the law as the “inventor or legal successor”. Since in the vast majority of cases the applicant is also the materially entitled person (i.e. the inventor or his legal successor), in everyday language the term "applicant" is also understood to mean the materially entitled person (= owner, inventor or his legal successor).

Procedural authorization

The one to conduct a registration process, e.g. B. the patent granting procedure. In German and European patent law, beneficiaries are addressed with the procedural term "applicant".

The applicant for a property right application does this by naming himself as applicant to the responsible office when filing an application and then being registered as such in the respective patent register. When submitting these applications, the applicant must also be specified, otherwise the application will not be granted a filing date and it will not be effective. The applicant is recorded together with the other registration information in the respective register (patent register, trademark register ...).

Regardless of whether the applicant is substantively entitled to the subject matter of the application (e.g. a technical invention), he is in procedural law, e.g. B. on the German and European patent granting procedure, defined as having the right to proceed, in that the various procedural regulations focus on the applicant, not on the materially entitled person (in the case of inventions, the inventor or his legal successor). In addition, his procedural entitlement is generally faked in patent law ("... is considered to be entitled ...").

The fiction itself is irrefutable. The patent office will not conduct the proceedings with anyone other than the registered applicant or his representative. However, the registered applicant can be changed so that the patent office then conducts the procedure with the changed applicant.

Material entitlement to inventions

In German and European patent law, the material beneficiary is addressed with the substantive term “inventor or legal successor”. It is independent of the stage of the procedure, i.e. whether it is a patent application or a patent.

Origin of rights, in particular the right to register in the inventor

In German and European patent law, the right of ownership to the patent following the application is defined first. It belongs to the inventor or his legal successor . It is the same for the patent application. Inventors can only be natural persons.

Change of applicant, legal succession

"Change of applicant" and "legal succession" are the same in the jargon-like understanding of the term "applicant", while in the legally exact understanding and accordingly in the legal effect they are different things, namely the former only the change of the applicant registered in the respective register and the latter the Transfer of material rights. Viewed individually, these two processes do not influence each other. In other words: without a change in the register, a new owner does not receive procedural rights, and without a material transfer the registered applicant or patent holder does not receive material rights.

There are various mechanisms by which the applicant can be changed and the rights to an invention can be transferred.

Applicant change:

  • Application for the change of the applicant registration at the patent office by mutual agreement by the previous applicant and the new applicant to be registered,
  • Change of registration due to final judgment.

Transfer of rights, legal succession:

  • Employee invention law .
  • Contract : When drafting contracts relating to the authorization to apply for patents, it must be ensured that material rights and procedural authorization are regulated as desired. As explained, they are legally considered separately. Contracts have to take this into account.
  • Others, such as inheritance , company merger or transformation, and the like
  • Final judgment of a court

A legal successor, e.g. B. the employer of the inventor can also be a legal person, e.g. a GmbH. The transfer can take place before or after filing a patent application with a patent office, so that persons other than the inventor, e.g. B. his employer, can legally be the applicant from the start.

Effect of the entry in the register

In the registers, e.g. the patent register, the applicant for an application (e.g. patent application) is also identified. The applicant shown in the register is the one who has been granted procedural authorization. The entry in the register has no influence on the material entitlement; it can be shown differently than in the register, e.g. B. because a contractual legal succession made after the last applicant registration has not yet been entered in the register or because the registered applicant was not authorized from the start.

The materially unauthorized patent applicant

In the event that someone who is not materially entitled to apply for a patent applies for an invention, procedures are available with which corrections can be made. On the one hand, a patent granted to a materially unauthorized person can be brought down (and the materially entitled person may then be entitled to the so-called "withdrawal priority"). On the other hand, the patent or the previous application can be transferred away from the unauthorized person to the person entitled.

The easiest way is to apply for the transfer of the applicant in the register to the patent office by mutual agreement of unauthorized current applicants and the material owner. If, on the other hand, the question of entitlement is disputed, formal procedures are available to clarify the question, in particular objection to the patent office or nullity action to the Federal Patent Court due to unlawful removal or the vindication action to the conventional courts.

If the material owner has suffered damage due to the activities of the unauthorized applicant, the former can be entitled to a claim for damages against the latter.

Relationship to other people, personal names and terms

Applicant

In the case of natural persons, whether “applicant” or “applicant” is said depends on the person's biological sex. In the case of legal persons, it is based on the grammatical gender of the legal persons referred to. For example, the various companies (AG, GmbH, OHG, KG, BGB ...) are addressed accordingly as “the company” as the “applicant”, and associations according to “the association” as the “applicant”.

Co-applicant

There can be several applicants for a property right application. Collectively, they are addressed as “co-registrants”. Their relationship with one another is determined by general civil law (society, community).

Inventor, co-inventor

An inventor is a natural position who alone or with other natural persons has created an invention. He can, but does not have to be, the applicant. If an invention was made jointly by several inventors, they are collectively addressed as co-inventors.

Representative (patent attorney)

The representative, e.g. B. a patent attorney works in the name of and on behalf of the applicant for the patent authorities. The patent office sends the official documents to the representative, who forwards them to the applicant. The representative is opposite. bound by the applicant's instructions and is bound to secrecy towards others.

Patent holder

If a patent is granted on a patent application, the application is lost in favor of the patent. Since there is then no more registration, there is no longer a registrant. The former applicant has become the patent owner and is registered as the person entitled to proceedings for the patent. The procedural entitlement may then concern opposition or nullity proceedings to be conducted, but possibly also infringement proceedings based on the patent.

The explanations regarding possible differences between procedural authorization and material authorization apply equally to the patent owner.

Owner, owner

Owner and proprietor are terms that generally refer to the applicant in jargon or, after the granting of property rights, to the patent or trademark owner. These equations are correct if the registered applicant or the registered proprietor of property rights are also substantively entitled. Otherwise there is the discrepancy described above.

Paraphrase

In any case, this usually means changing the applicant's entry in the register. In the broader jargon-like understanding, however, the transfer of material rights is also often addressed.

transmission

Most of the time it means the transfer of material rights. Sometimes it gets out of sight that the description in the register is also necessary in order to obtain procedural authorization. In English the transfer is called "transfer" or "assginment".

Other languages

In English the applicant is "applicant", in French it is "demandeur".

Applicants for utility models, trademarks and designs

The statements made above primarily in relation to patent applicants also apply in the same way to applicants for utility models (GebrMG §§ 4 (3) 1., 8 (2), 15 (1)) and in a very similar way also to design applicants (DesignG §§ 7 , 8, 11 (2) 2., 19 (2) and 29 (3)) and trademark applicants (trademark §§ 28 (1), (2), 32)

Even with these other formally registrable rights, the applicant is expressly granted procedural authorization and / or by fiction or legal presumption , while the substantive rights may differ. Among other things, differences in designs and trademarks are in how deviations can occur - especially at the beginning of the "life" of the property right - and how they can be rectified if necessary.

See also

Web links

Bibliography

  • Dr. Georg Benkard among others: Patent Law, Utility Model Law . 10th edition. Verlag CH Beck, Munich 2006, ISBN 3-406-53954-8 . On Section 7, in particular marginal numbers 2 to 5
  • Rainer Schulte (Ed.): Patent Act with European Patent Convention . 10th edition. Carl Heymanns Verlag, Cologne 2017, ISBN 978-3-452-28275-0 . On Section 7, in particular marginal numbers 5 to 8
  • Margarete Singer, Dieter Stauder (Eds.): European Patent Convention (EPC) . 10th edition. Carl Heymanns Verlag, Cologne 2010, ISBN 978-3-452-27135-8 . On Art. 60, in particular No. 4 to 19

Individual evidence

  1. ↑ Paragraph (1) PatG PatG § 7 (1)
  2. ↑ Art. 60 (3) EPC
  3. ^ PatG PatG
  4. ↑ Art. 60 (1) EPC
  5. ↑ Paragraph (1) ArbNErfG
  6. ↑ Art. 60 (1) EPC
  7. ↑ Sections 7 and 8 PatG
  8. ↑ Art. 61 EPC