Information function of patents
The information function is one of the two basic functions of a patent wanted by law . The second basic function is the ( monopoly-like ) protective effect (against imitation of the patent subject by unauthorized third parties).
What is said below about the information function of patents also applies in principle to the “small patent”, the utility model .
The legal basis for the (monopoly-like) protective function of the patent areand PatG. This effect of a patent is well known.
Less well known is the second basic function, which is the information function, which is actually more important from an economic point of view. According to this, the patent - in the form of the patent specification published in print - should inform every interested party as precisely and comprehensively as possible about the invention in question . The legal basis for this is (4) PatG.
Two variants of the information function
Strictly speaking, the information function must be divided into two variants: a) Informing an (authorized) third party (current or potential licensee ) who intends to use the invention for commercial purposes, e.g. B. by manufacturing and selling the patented product, and b) informing the general public, d. H. usually the interested industry, about the state of the art achieved in the respective specialist area.
The fact that the information purpose a) is intended by the legislator can be seen directly from the wording of Section 34 (4) PatG, which states: "The invention must be disclosed in the (patent) application so clearly and completely that a skilled person ( in the relevant technical field) can carry it out. ”In contrast, the no less important information purpose b) is not expressed verbatim in the legal text. However, it becomes clear from the entirety of the Patent Act and against the background of the basic market economy. The granting of an exclusive right (in particular the right to prohibit) an invention by granting a patent represents a breach of the current principle of the free market economy. It can therefore - as an exception - only be justified by the registration act standardized in Section 34 (1) and (2) of the Patent Act , which means a detailed disclosure of the invention for the purpose of publication: According to (1) No. 1 and 2 PatG, the German Patent and Trademark Office (DPMA) publishes the published documents and the patent specifications . The so-called disclosure document is the application documents submitted to the DPMA and published by the DPMA in accordance with (2) No. 2 PatG 18 months after the relevant point in time for the application, Section 32 (2) sentence 1 PatG. The published patent specification is - like the patent specification - to be regarded as a public publication within the meaning of (1) of the Patent Act.
In general, one can of course assume that if an invention is disclosed so clearly and completely in the patent application (or patent specification) that a person skilled in the art can carry it out (Section 34 (4) PatG), the information purpose in its target direction is usually also included b) is sufficient, namely to inform the general public.
While since the beginning of the industrial age in the second half of the 19th century, the pros and cons of the patent system that was newly created at the time had been discussed mainly under the aspect of monopoly effect, more recently there have been increasing voices in favor of a stronger emphasis on the information function , in their form of informing the general public, plead.
A very important step towards strengthening awareness of the information function of patents was taken by a research project commissioned by the Federal Government of the Fraunhofer Institute for System Technology and Innovation Research (ISI), Karlsruhe, with the title “Developing the information function of patents and utility models for small and medium-sized companies. "
Economic importance of the information function
In today's market, the information function of patents is often (only) used to provide the competitor who is hindered in his activities by a third-party patent with relevant printed "material" for an objection or an action for annulment against the "interfering" foreign patent. However, the value of the information function should in no way be reduced to this. Rather, the importance of the information function, which is constantly increasing in its efficiency, is primarily to be seen in the fact that it is ideally suited to provide companies with technical knowledge in an application-oriented form. On the one hand, the information function could help companies that are already active in a certain technical sector to keep themselves constantly up to date with the state of the art relevant to them. On the other hand, it would also enable newly founded companies or company divisions to find their way around the respective technical new territory quickly and at a reasonable cost.
Optimal use of the information function in industry?
While there is broad consensus on the great importance of the information function in scientific literature, as well as in leading political circles, the target group who could and should benefit from the information function, namely industry, is still largely ignorant and disinterested. One reason for this may be to be found in the fact that the individual entrepreneur (understandably) primarily thinks in a business-related manner and therefore - if he is interested in patents at all - their monopoly-like effect is in the foreground. In contrast, the importance of the information function emanating from patents is more at an economic level. In practice, it has been shown time and again that companies obtain their technical information predominantly at trade fairs and through existing contacts with suppliers and customers and, if necessary, by purchasing specialist magazines. Obtaining information while neglecting patent specifications as an important source of technical ideas must almost inevitably lead to a deceptive and therefore dangerous feeling of seemingly complete knowledge of the relevant state of the art. The disillusionment caused by the patent office often turns out to be all the more painful for the inventor or patent applicant when the examiner presents a "paper" state of the art that anticipates the invention and which is previously completely unknown to the inventor or patent applicant who thinks he is technically fully informed was. In view of the situation described, it is important to promote and improve the use of patent information by companies.
The patent information search
While the question of “when” is relatively easy to answer - the patent information search should be carried out before the start of a research and development project - it appears to be difficult to conduct the patent information search in such a way that it is efficient on the one hand and on the other can be evaluated by the client (e.g. the technical manager of an industrial company) with a reasonable expenditure of time. For this, a definition of the respective research goal as precise as possible is desirable. No less important is the requirement of a "user-friendly" report form when designing the patent information search. However, a technical manager or development manager, which is not infrequently found in practice, whereby subordinate employees (so-called researchers) select the documents and prepare the research results in the form of a "structured short report" in which the individual patent specifications identified can only be evaluated with regard to their technical content “by about two to four sentences”. In any case, it should be avoided (even partially) to delegate the evaluation of the information research to the researcher in such a way that the researcher should summarize the content of the individual publications in just a few sentences. Because with such a shortening of the technical content of the patent specification, it is naturally inevitable that a lot of information is sorted out as apparently unimportant, which the responsible technical manager might be particularly interested in.
Structure of the patent specification
The described problems with the use of the information function could be at least partly due to the formal structure of a patent specification and to the possibly related inability of those concerned to exploit the valuable information contained in the patent specification. In order to make optimal use of the information in the patent specification, the technical expert should carefully take note of the “exemplary embodiments” described - in the case of objective patents, these are the drawings and the so-called description of the figures. The so-called patent claims also contain only technical information. However, in order to do justice to the protective purpose of the patent, its formulation must inevitably follow legal requirements at the same time , which may make certain abstractions necessary.
The importance of patent authorities and attorneys
In connection with the information function of the patent literature, the not inconsiderable economic and socio-political importance of the patent attorneys , who are responsible for formulating the text of the patent specification, must also be seen. However, the no less important task of the national and international patent authorities should also be emphasized, to classify the patents with regard to their technical content again and again - with meticulous fine division into sections, classes, subclasses, groups and subgroups - in order to have easy access to the enable respective technical subject.
(Further) promotion of the information function
According to the unanimous opinion of business and politics, the maintenance and improvement of the information function also requires that the interested industrial groups not only inform themselves - passively - but also actively work as patent applicants for their own inventions.
- Dietrich Scheffler, Monopoly Effect and Information Function of Patents from Today's Perspective, in: Journal " Commercial Legal Protection and Copyright " (GRUR) 1989, p. 798 ff.
- Benkard, G., Patentgesetz, Utility Model Act, 10th edition, Munich 2006, p. 773
- Cf. on this: Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A theoretical and empirical investigation -, Diss., Stuttgart 1986, p. 101 ff, with numerous. further follow.
- See in particular: Grefermann, K. et al., Patents and technical progress, Part I: The effect of patents in the innovation process, Göttingen 1974; Greipel. E., Täger, U., Competitive Effects of Corporate Patent and Licensing Policy, Berlin, Munich 1982; also: Schmookler, J., Invention and Economic Growth, Cambridge, Mass. 1966, p. 10
- Schmock, Schwitalla, Grupp, with the collaboration of Krestel, Nickels and Wild: New patent information service developed for small and medium-sized companies (short version of: the same: Development of the information function of patents and utility models - final report of the Fraunhofer Institute for System Technology and Innovationsforschung, Karlsruhe 1988), in: Press and Information Office of the Federal Government (Ed.): Current Contributions to Economic and Financial Policy, No. 8/1989, Bonn, January 19, 1989
- International Patent Classification , 2012 edition, in German translation, ed. from the German Patent and Trademark Office, Munich, Cologne, Berlin, Bonn