Grace period

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As a grace period is known in intellectual property law the period in which a patent - utility model or - Design registration nor the requirement of novelty , met although the respective subject matter was already made available by the applicant property rights of the public.

Patent law

In Germany, the concept of absolute novelty applies to patents, i.e. only inventions that are unknown to the public at the time of patent application are patentable. Since the public is always given when it is a question of an unlimited group of people, any form of publication, including and especially gray literature , advertising brochures, etc., is detrimental to the novelty of patent applications.

Only in the event of improper disclosure by third parties, for example if documents were stolen or a confidentiality agreement was broken, or if the object was shown by the applicant at one of very few international trade fairs / exhibitions, this disclosure will not be taken into account if the registration is not longer than 6 months was submitted later (Section 3, Paragraph 5, PatG). The European Patent Convention also provides for a similar regulation (Art. 55, Paragraph 1, EPC). To this extent, there is a "false grace period" in Germany and the EPC states.

In other countries, such as the United States , there is a grace period for patents. There it is called the grace period and is 12 months.

Before 1978 there was also a grace period for patents in Germany, which was abolished in the course of European harmonization. In the meantime, the requirement of absolute novelty is seen by a little more than half of the patent-active scientists (see the final report of the BMBF) as an obstacle to innovation, in particular with the argument that there is a conflict of objectives for scientists between publication obligation and patent application. To resolve this conflict, the introduction of a period of a few months is being considered, which should apply to inventors' own publications. But this should not be done as a national solo effort.

Utility model and design law

For utility models, the relative concept of novelty applies with a grace period of 6 months, for designs of 12 months. This means that utility models and designs are still registered if the subject of protection has been known to the public for a maximum of 6 or 12 months. In utility model law, awareness must result from the actions of the applicant or his legal predecessor, Section 3 (1) sentence 3 of the Utility Model Act . In design law, making available to the public must arise from actions or information by the designer or his legal successor, or the disclosure of the design must be the result of an abusive act against the person entitled, Section 6 of the Design Act .

Trademark law

In contrast to the above-mentioned property rights, trademarks do not have to be new, a novelty protection period is not applicable. For example, old and no longer protected trademarks can be reused and protected by third parties, provided that there are no obstacles to protection or rights according to Sections 8 to 13 of the Trademark Act .

Web links

Individual evidence

  1. ^ Patent Server Publication . Federal Ministry of Economics and Technology website. Retrieved October 2, 2012.
  2. ↑ Patent Server FAQ . Federal Ministry of Economics and Technology website. Retrieved October 2, 2012.