Appointment of inventor

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Inventor is the naming the inventor or - at more than - the inventor on the published patent application (so-called laid-open specification ), on the patent and the publication of the grant of the patent .

Legal basis

The legal basis for naming the inventor is Section 63 (1) sentence 1 of the Patent Act. According to this provision, the inventor is entitled to "on the disclosure document ( Section 32 (2) Patent Act), on the patent specification (Section 32 (3) Patent Act) and in the publication of the grant of the patent ( Section 58 (1) Patent Act) if it has already been named ". In the aforementioned Be naming of the inventor of the inventor nomination must be clearly distinguished, it is a mandatory declaration by the patent applicant in patent prosecution before the German Patent and Trademark Office is to be delivered (DPMA), § 37 para. 1 sentence 1 PatG. However, is the inventor naming the precondition that a mention of the inventor in the public filings of the DPMA can take place (see above), because the inventor without a corresponding knowledge of the DPMA on the person of the inventor (or the inventor) would not be possible logically. The inventor has conducted in the DPMA register (§ § 30 of the so-called roll para. 1 PA), to be noted § 63. 1, sentence 2 of the Patent Law.

history

Up until 1936 there was no statutory provision for naming the inventor in the public announcements of the DPMA. An order to name the inventor on the patent specification was only possible through administrative channels. Only after the stipulation of Art. 4 ter Paris Convention for the Protection of Industrial Property (PVÜ) in the London version of 1934, which determined that the inventor had a right to be named as such on the patent specification , has the right to be named Found in the German patent law of 1936.

Legal nature

The right to be named inventor is part of the right to an invention, which is both a property right and a right of personality . The so-called inventor's honor is a highly personal right within the meaning of Section 823 (1) of the German Civil Code (BGB) and arises solely on the basis of the fact of inventing or co-inventing. This means that it is neither dispensable nor transferable nor attachable and can only be asserted in court by the inventor himself, but not by a third party. The inventor cannot do without being named. A waiver of the designation of the inventor would be "without legal effect" according to Section 63 (1) sentence 5 PatG. However, it is possible for the inventor to "apply for" not being named, whereupon the inventor is not named, Section 63 (1) sentence 3 of the Patent Act. According to Section 63, Paragraph 1, Clause 4 of the Patent Act, "the application ... can be revoked at any time; in the event of revocation, the nomination will be made retrospectively".

Claims of the inventor

Claims under Section 63 (2) of the Patent Act

If the person of the inventor is incorrectly stated, the inventor has the right to "declare his consent to the patent seeker (patent applicant) or - in the case of a patent that has already been granted - to the patent proprietor in accordance with Section 63 (2) sentence 1 PatG the ... mention is corrected ... ". The same applies if the inventor is not named at all. In this case, the declaration of consent must be directed towards the appointment of the inventor. The declaration of consent can be sued by the inventor and is irrevocable, Section 63 (2) sentences 2 and 3 PatG. It should be noted that Section 63 (2) of the Patent Act assumes that a violation of the right to be named as inventor can only be considered with the disclosure of the patent application, so that the provision only grants the right to correction from the date of disclosure. However, the inventor is entitled to rectification prescribed by § 37 para. 1 of the Patent Law inventor before that date be to nomination. This is a preventive claim based on personal rights .

Claim from § 823 Paragraph 1 BGB

According to Section 823, Paragraph 1 of the German Civil Code (BGB), anyone who " intentionally or negligently ... violates another right of another person ... is obliged to compensate the other person for the resulting damage". The owner of an "other right" thus has a claim for damages against the culpable infringer of this right if the infringing act is unlawful . General personal rights are recognized as "other right within the meaning of Section 823 (1) BGB. Since, as explained above, the right to be named as an inventor is a general personal right, if it is not mentioned, it is not mentioned in time or incorrectly the objective fact of § 823 paragraph 1 BGB is fulfilled. The required illegality (illegality) is given if the infringer cannot assert any grounds for justification . Subjectively, there must be intent or negligence on the part of the infringer.

European patent law

The provisions on the designation of inventors in European patent law are partly similar to the above-described regulation in German patent law, but do not agree with the latter in all points. Rule 20 (1) AusfOEPÜ stipulates that the inventor named to the European Patent Office "will be noted on the published European patent application and on the European patent specification", "unless he has waived the right in writing to the European Patent Office to be made known as the inventor to become". Rule 20 AusfOEPÜ largely corresponds to Section 63 (1) PatG. However, it expressly allows the inventor to waive naming, which would be "without legal effect" under German patent law, Section 63 (1) sentence 5 of the Patent Act. Art. 62 EPC grants the inventor "the right in relation to the applicant for or proprietor of the European patent to be named as the inventor before the European Patent Office". Rule 21, Paragraph 1, Sentence 1 of the AusfOEPÜ stipulates that "an incorrect designation of the inventor ... will be corrected upon request and only with the consent of the wrongly named inventor and, if the request is submitted by a third party, with the consent of the applicant or patent holder" . "If an incorrect designation of the inventor is entered in the European Patent Register or published in the European Patent Bulletin, its correction or deletion will also be entered or published", Rule 21, Paragraph 2, AusfOEPÜ.

Economic significance

The naming of his person as the inventor in the public notices of the DPMA (as well as the EPO and - if necessary - the patent offices of other states) means for the inventor a public embodiment of his inventor's honor . It will therefore motivate him to continue creative work in many cases. If you consider that around 90% of all inventions come from employees employed in companies - Greipl / Täger put the proportion of employee inventions at 94% - the economic and political significance of the inventor's appointment cannot be overestimated.

See also

Individual evidence

  1. ↑ a b Benkard-Schäfers, Patent Law, Utility Model Law, 10th edition, Munich 2006, Rn 4 to § 63 PatG
  2. ↑ See the corresponding announcement in the journal "Blatt für Patent-, Muster- undzeichenwesen" (BlPMZ) 1922, p. 22f.
  3. ↑ Kammergericht (KG), in: Journal "Mitteilungen der Deutschen Patentanwälte " (Mitt.) 1956, p. 218
  4. ↑ Federal Court of Justice (BGH), in: Journal " Commercial Legal Protection and Copyright " (GRUR) 1978, pp. 583, 585
  5. ↑ BGH, in: GRUR 1969, p. 133
  6. ↑ Benkard-Schäfers, Patent Law, Utility Model Law, 10th edition, Munich 2006, Rn 3 to § 63 PatG
  7. ↑ Palandt- Sprau, Bürgerliches Gesetzbuch, 63rd edition, Munich 2004, Rn 19 on § 823 BGB
  8. ↑ Palandt-Sprau, Bürgerliches Gesetzbuch, 63rd edition, Munich 2004, Rn 27 on § 823 BGB
  9. ↑ Implementing Regulations for the European Patent Convention 2000 (Official Journal EPA 2007, Special Edition 1/2007, p. 91; BGBl. 2007 II, p. 1202; 2008 II, p. 179)
  10. ↑ European Patent Convention (Official Journal European Patent Office (EPO) 2007, p. 3)
  11. ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A theoretical and empirical investigation, (Diss.) Stuttgart 1986, p. 163 f.
  12. ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A Theoretical and Empirical Investigation, (Diss.) Stuttgart 1986, p. 142.
  13. ^ Greipl, E., Täger, U., Competitive Effects of Entrepreneurial Patent and Licensing Policy, Berlin, Munich 1982, p. 46.

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
  • Otto Palandt , Bürgerliches Gesetzbuch, 63rd edition, Munich 2004 (quoted: Palandt editor)

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