Designation of the inventor
The designation of the inventor is a declaration to be submitted by the patent applicant in the patent grant procedure before the German Patent and Trademark Office (DPMA) - mandatory. You may not use the so-called inventor nomination ( inventor honor ) be confused, which is a personal rights is the right aspect of the invention.
Legal basis
According to Section 37, Paragraph 1, Clause 1 of the Patent Act (PatG), "the applicant ... within fifteen months of the filing date or, if an earlier point in time is used as decisive for the application, within fifteen months of this point in time or to name the inventor and to assure that other persons to his knowledge are not involved in the invention ".
Legal ground
The indispensability of naming the inventor results from § 6 PatG. Because according to sentence 1 of this provision "the right to the patent ... the inventor or his legal successor " has. "If several people have jointly made an invention, they jointly have the right to the patent", § 6 sentence 2 PatG. "If several people have made the invention independently of each other, the right belongs to the person who first registered the invention with the patent office", § 6 sentence 3 PatG.
Transfer of rights to the patent applicant
If the patent applicant is not or not only the inventor, but his legal successor (who, according to Section 6 sentence 1 PatG - alternatively - also has the right to the patent (see above)), Section 37 (1) sentence determines 2 PatG that he has to indicate how the right to the patent came to him. The transfer of rights must be credible and specified with sufficient clarity. If the invention for which a patent is pending is a so-called service invention of an employee who is employed by an employer acting as a patent applicant , it is usually sufficient to state that the named inventor is an employee of the patent applicant (and thus a so-called employee inventor) (In practice, around 90% of all patent-pending inventions come from employee inventors). Strictly speaking, the transfer of rights from the employee's inventor to the employer usually takes place through unrestricted use of the invention in accordance with Sections 6 (1) and 7 (1) ArbEG. In the case of inventions for which the ArbEG is not relevant for the transfer of rights, the DPMA requires the relevant transfer contract (including the contract date!) To be specified as evidence of the transfer of rights to the patent applicant.
shape
According to § 1 ErfBenVO, written form is required for submitting the designation of the inventor, for which a separate document is required. According to § 2 No. 5 ErfBenVO, the designation of the inventor must contain the signature (s) of the applicant or - in the case of several applicants - the applicant.
Deadlines
Section 37 (1) sentence 1 of the Patent Act sets the patent applicant a period of fifteen months for submitting the name of the inventor and the information relating to it (see above), "after the filing date or, if an earlier date is decisive for the application Claim is "after that time begins. Section 37 (2) sentence 1 PatG, however, obliges the DPMA to grant “a reasonable extension of the deadline” if “the applicant credibly” proves “that he is prevented by exceptional circumstances from making the declarations prescribed in paragraph 1 (of Section 37) in good time submit ". "The period should not be extended beyond the adoption of the resolution on the granting of the patent", Section 37 (2) sentence 2 Patent Act. "If the reasons for the impediment still exist at this point in time, the patent office must extend the deadline again", Section 37 (2) sentence 3 of the Patent Act.
No test
It is true that the designation of the inventor and the information to be given in connection with it are subject to the obligation to be truthful in accordance with Section 124 of the Patent Act, because these are "statements about actual circumstances" that are made "in the proceedings before the patent office". Nevertheless, "the accuracy of the information ... is not checked by the patent office", Section 37 (1) sentence 3 of the Patent Act. The reason for this legal regulation is that the patent granting procedure should not be burdened by a discussion and examination of the inventorship (factually and in terms of time).
Sanctions
The Patent Act does not provide for special sanctions, for example of a criminal nature, for failure to submit, incorrect or late submission of the designation of the inventor. Incorrect information does not have any negative consequences for the patent office process or for the granted patent, because they are not the cause of the granting of the patent according to Section 37 (1) sentence 3 of the Patent Act. They therefore do not qualify as patent fraud. However, an incorrect naming of the inventor leads, in accordance with Section 63 (2) sentence 1 of the Patent Act, to a correction claim by the real inventor against the patent applicant or proprietor and the person wrongly named as the inventor. If the designation of the inventor is not submitted within the - possibly extended - periods of § 37 Paragraph 1 Clause 1 or Paragraph 2 Clause 1 to 3 PatG, the DPMA gives the patent holder "six months" in accordance with § 37 Paragraph 2 Clause 4 PatG prior to the expiry of the (last) deadline, a message that the patent will expire if he does not make the required declarations within six months of the message being served ". Failure to submit or timely submission of the designation of the inventor can therefore lead to serious consequences in the loss of the (already granted) patent.
See also
Individual evidence
- ^ German Patent Office (DPA), in: Journal of Commercial Legal Protection and Copyright (GRUR) 1951, p. 72
- ^ DPA, in: GRUR 1953, p. 220
- ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A Theoretical and Empirical Investigation (Diss.), Stuttgart 1986, p. 142
- ↑ Law on employee inventions of July 25, 1957 (Federal Law Gazette I, p. 756), last amended by Article 1 of the law of January 18, 2002 (Federal Law Gazette I, p. 414)
- ^ DPA, in: Journal "Mitteilungen der Deutschen Patentanwälte " (Mitt.) 1940, p. 114
- ↑ Ordinance on the designation of the inventor of May 29, 1981 (BGBl. I, p. 525)
- ↑ a b Benkard-Schäfers, Patent Law, Utility Model Law, 10th edition, Munich 2006, Rn 9 on § 37 PatG
- ↑ Federal Court of Justice (BGH), in: Journal "Blatt für Patent-, Muster- undzeichenwesen" (BlPMZ), 1954, p. 332.
literature
- Georg Benkard, Patent Act, Utility Model Act, 10th edition, Munich 2006 (quoted: Benkard editor)
- Rainer Schulte, Patent Law, 6th edition, Cologne, Berlin, Bonn, Munich 2001
