Right of use (ordered by the state)

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State-ordered right of use denotes a legal position whose owner does not require the permission of the patent owner to use an inventive subject matter protected by a third-party patent . In contrast to other usage rights, e.g. B. the right of prior use according to § 12 Patent Act (PatG) or § 13 para. 3 Utility Model Act (GebrMG) or the right of further use according to § 123 para. 5 to 7 PatG, the state-ordered right of use is not directly justified by law, but requires one in each individual case express order of the executive that is linked to certain factual requirements .

Interfering with the law from the patent

Since the patent, as an intellectual property right, has a property- like character, it falls, like property, under the constitutional guarantee of fundamental rights in Article 14 of the Basic Law (GG). The sovereign arrangement of a right to use a patent in favor of a third party is therefore equivalent to an expropriation . According to Article 14.3 of the Basic Law, expropriations may only take place on the basis of a law, except by law. The phrase “on the basis of a law” means: by an administrative act based on legal authorization .

Legal basis for authorization

The legal basis for authorizing the executive to order a right to use the patent in favor of third parties is Section 13 (1) of the Patent Act. According to this provision, "the effect of the patent ... does not occur in so far as the federal government orders that the invention should be used in the interests of public welfare . Furthermore, it does not extend to a use of the invention that is ordered in the interest of federal security by the competent highest federal authority or on their behalf by a subordinate body ”. The “effect” of the patent is the (positive) rights of use and (negative) prohibition rights of the patent owner with regard to the invention protected by the patent, standardized in § 9 , § 9a and § 10 PatG.

Factual prerequisites for the authorization

Public welfare interest

The prerequisite “interest of public welfare” standardized in Section 13 (1) sentence 1 must be interpreted broadly . In particular, it excludes cases of state welfare and emergencies , e.g. B. epidemics and the like., A. The use of inventions to protect workers in the mining industry against dangers to life and health also falls under the term "interest of public welfare.

Federal security interest

This prerequisite is to be understood as an alternative to the "interest of public welfare", Section 13 (1) sentence 2 Patent Act. The term “ federal security interest” refers to cases of protection against attacks against the federal government and the civilian population, e. B. Air protection , recorded, it is irrelevant whether the attacks come from outside or inside.

Competencies

Federal government

§ 13, para. 1, sentence 1 PatG is (exclusively) in the case of a use arrangement in the interest of the public welfare, the competence of the Federal Government given. In the sense of Art. 62 GG , this will mean the entirety of the Federal Chancellor and Federal Ministers . Because § 13 PatG does not offer any indications for a delegation of the authority to issue orders to individual federal ministers.

Supreme federal authority

For usage orders in the interests of federal security, on the other hand, the competence lies exclusively with the competent highest federal authority or - on their behalf - with an agency subordinate to the highest federal authority, Section 13 (1) sentence 2 Patent Act. Responsible highest federal authorities can be: the Federal Ministries for the Interior and Defense .

Appeal

Pursuant to Section 13 (2) of the Patent Act, the patent holder has the legal remedy of an appeal before the Federal Administrative Court against usage orders in the interest of public welfare as well as against those in the interest of federal security . The contestability of sovereign usage orders corresponds to the constitutional guarantee of legal recourse in Art. 19 (4) GG, according to which the rights of those who are violated by public authorities (in this case the federal government or the competent supreme federal authority) (in this case by the state usage order, the deprives the patent holder of the sole right to use the patent and the right to prohibit third parties (Section 9 PatG)), legal recourse is open.

compensation

The state order for use means a considerable restriction of the sole right of use and prohibition of the patent owner, which has the character of a special sacrifice in favor of the general public, which accordingly requires financial compensation in favor of the patent owner. Therefore, Section 13, Paragraph 3, Clause 1 of the Patent Act grants the patent owner a “right to appropriate remuneration against the federal government”. Because of the amount, legal recourse is open to the ordinary courts in the event of a dispute ”. Section 315 of the German Civil Code (BGB) is decisive for the appropriateness of the remuneration .

In the event that the patent owner (previously) granted an exclusive license to his patent, the state usage order also affects the legal position of the licensee concerned . This is therefore entitled - in addition to the patent owner himself - to appropriate compensation through financial compensation.

See also

literature

Individual evidence

  1. ↑ Decisions of the Federal Court of Justice in Civil Matters (BGHZ), vol. 18, p. 81 ff
  2. ↑ Federal Patent Court (BPatG), in: Journal "Sheet for Patents, Patterns and Signs (BlPMZ)" 1970, p. 49 ff
  3. ↑ Decisions of the Federal Constitutional Court (BVerfGE), vol. 56, p. 249 ff; also: vol. 58, p. 300 ff
  4. ↑ a b Benkard- Bruchhausen , Patentgesetz, Utility Model Act, 6th edition, Munich 2009, Rn 3 to § 13 PatG
  5. ↑ Decisions of the Reichsgericht in Civil Matters (RGZ), vol. 120, p. 264 ff
  6. ↑ Benkard-Bruchhausen, (individual ref. 12), Rn 5 on § 13 PatG
  7. ↑ See also: decisions of the Federal Constitutional Court , (BVerfGE), vol. 11, p. 77 ff
  8. ↑ Benkard-Bruchhausen (individual reference 12), marginal number 13 on § 13 PatG
  9. ^ So already the Reichsgericht, in: RGZ, vol. 79, p. 427 ff
  10. ↑ Benkard-Bruchhausen (individual reference 12), marginal number 14 on § 13 PatG