Patent Attorney (Germany)

from Wikipedia, the free encyclopedia

A patent attorney advises and represents clients in the field of intellectual property and industrial property protection , which includes patents , utility models , designs , trademarks , employee invention law , semiconductor protection law , plant variety protection law and license agreements . The focus is on representation in proceedings before the patent and trademark offices and the competent courts (in Germany especially before the Federal Patent Court , from 2012 also in Switzerland ).

Patent attorneys have the right to submit statements for their clients before ordinary courts, but are only conditionally capable of postulating (see below on Section 4 (3) PatAnwO), i.e. only entitled to submit applications in certain proceedings. That is why lawyers usually appear together with patent lawyers before the ordinary courts, especially since lawyers often lack technical qualifications. The profession of patent attorney in Germany is a classic chamber profession , i. H. the Chamber of Patent Attorneys oversees the patent attorneys and membership of the Chamber is compulsory.

For patent proceedings before the European Patent Office (EPO), there are authorized representatives before the European Patent Office , who are often also authorized as patent attorneys in a contracting state to the European Patent Convention (EPC).

Area of ​​responsibility

With their completed scientific or technical university degree and their additional legal training, patent attorneys are entitled to represent third parties before the German Patent and Trademark Office and the Federal Patent Court in matters of industrial property protection as well as before the Federal Court of Justice (BGH) in patent nullity appeal proceedings (§ 113 PatG). In proceedings before the regional courts, the higher regional courts and the Federal Court of Justice, they are authorized to represent in exceptional cases, namely when there is no legal requirement (Section 4 (3) PatAnwO). This applies, for example, to applications for the issuance of an interim injunction and for corresponding protective letters, although a lawyer must be consulted as soon as the court at which the application for an interim injunction has been held conducts an oral hearing. Otherwise, the patent attorneys are to be allowed to speak next to the litigation attorney on request (§ 4 PatAnwO). Patent attorneys are also entitled to advise others and represent them vis-à-vis third parties in matters relating to services that enrich technology.

As part of the additional legal training, in addition to patent law, the patent office and court particularly focus on trademark law . Patent attorneys who want to express a focus of their work and their legal advisory competence in this area sometimes use the professional title “patent and trademark attorney ”, the latter term also referring to attorneys with a focus on trademark law. In the Patentanwaltsordnung the rights and obligations of the patent attorney and the conditions laid down for approval.

history

Soon after the establishment of the Imperial Patent Office in May 1877, it turned out that the complex technical issues in the patent system required specially qualified specialists who, in addition to legal questions, were also able to understand the technical relationships between inventions . As a result, the law concerning patent attorneys came into effect on October 1, 1900 , according to which a list of particularly qualified persons was kept at the patent office.

In 1933 the Chamber of Patent Attorneys was established, which from then on served as a self-governing body for patent attorneys. In the Third Reich the end of 1938 was for the Sixth Regulation Reich Citizenship Law the Jewish patent lawyers of the professional qualifications. In 1966 the patent attorney regulations were issued. This gave the patent attorneys their current position as independent judicial authorities .

The first woman to become a patent attorney was Freda Wuesthoff . She passed the patent attorney examination in 1927. At the end of 2018, 3853 patent attorneys were licensed in Germany.

Organ of justice

Like the lawyer, the patent attorney is an independent body responsible for the administration of justice . This means that the patent attorney is not only obliged to his client, but must also respect the legal system. For example, the patent attorney is not allowed to present the untruth in court. He is also not allowed to act if he is already representing or has represented the other party on the same subject in dispute. The relationship between patent attorney and client is constitutionally privileged, which means that the state cannot force the patent attorney to report to third parties about client discussions.

Paths to admission

Admission as a patent attorney is regulated by the patent attorney regulation (PAO) and the patent attorney training and examination regulation (PatAnwAPrV). Who wants to be admitted, usually needs a written and an oral exam consist (changes apply to applicants who are already patent attorney in another EU country), the name by which the existence Patentassessor is awarded, the requirement to apply for an authorization as Is a patent attorney. Those who have either completed training as a patent attorney or worked as a patent clerk for a certain period of time are admitted to the examination.

The prerequisite for training as a patent attorney is a successful completion of a scientific (e.g. chemistry, physics, biology) or technical degree (e.g. electrical engineering, mechanical engineering, architecture, metallurgy, etc., including computer science) at a scientific university. A degree from a university of applied sciences is not sufficient for training as a patent attorney. Before starting this training, a patent attorney applicant must prove his practical and technical work experience through a one-year professional activity. Most patent attorneys, however, have carried out several years of research before starting their training. B. as part of a doctorate in the field corresponding to the future focus of activity. The patent attorney training lasts 34 months. It begins with a 26-month internship with a patent attorney or a patent assessor working in industry . Up to 2 months of this internship can also be done in the form of an internship at a regional court. During the internship, monthly seminars of the Chamber of Patent Attorneys are to be attended and lectures given. After fulfilling these requirements, you have to complete the so-called year of office, an eight-month training period at the German Patent and Trademark Office and the Federal Patent Court in Munich .

Anyone who has a scientific or technical university, college, technical college or vocational college degree and has been working full-time in the field of industrial property protection for ten years and is still active can be admitted to the examination immediately upon application, i.e. H. without prior training with a patent attorney / patent assessor and the patent authorities (§ 158 PAO). This path is known as the so-called facilitated admission to the examination and is also open to graduates of a technical college degree (including patent engineering or industrial engineering with a predominant proportion of technical and / or scientific subjects). It is mostly taken by patent officers in the industry. If the aptitude test for admission as a representative before the European Patent Office has been passed, eight years of full-time activity in the field of industrial property protection are sufficient.

Regardless of the path, i.e. equally for the patent attorney training as for long-term patent clerks, a degree in general law must be completed at a university. The FernUniversität Hagen offers a special course for this. The alternative is more theoretical to study law at a university up to the 1st state examination or a Bachelor of Laws.

Employment

In order to be able to advise clients on a freelance basis and to represent them before the national German authorities and courts for industrial property protection, a patent assessor must be approved by the Chamber of Patent Attorneys. For this purpose, the patent assessor must be sworn in as an organ of the administration of justice, set up a law firm and provide evidence of a certain minimum liability insurance. Joining an existing law firm can also meet the requirement to set up a law firm. The Chamber of Patent Attorneys maintains an electronic directory of approved patent attorneys. Admission as a German patent attorney also entitles you to representation before the Office for Harmonization in the Internal Market in Alicante, Spain ( OHIM / OHIM) and the World Intellectual Property Organization in Geneva (WIPO).

According to the EPC, European patents granted for Germany are usually the responsibility of the DPMA . However, the application procedure, the opposition procedure, the opposition appeal procedure and the limitation procedure are located at the EPO. Most German patent attorneys have therefore also been admitted as representatives before the European Patent Office, also known as European patent attorneys . Only then is the patent attorney entitled to represent clients before the European Patent Office. Those who pass the European proficiency tests (preliminary and main tests), which regularly have high failure rates, can be admitted. In order to be allowed to take the examination, one must prove a technical or scientific degree and three years of activity under the supervision of an approved European representative.

Every European Patent Attorney is entitled to have a place of business in each contracting state, e.g. B. in Germany to justify. The German Legal Services Act does not allow the professional representative to provide legal services other than to act before the EPO and to represent third parties in all proceedings before the EPO. It has not been clarified how far the professional representatives' right to advice extends. Article 134 (6) EPC stipulates that national (including German) authorities may withdraw authorization in individual cases in application of the legal provisions enacted for the protection of public security and order.

income

According to the quality report of the Federal Statistical Office (Destatis) on wage and income tax statistics 2015, which appeared on June 12, 2019, the average income of freelance patent attorneys in 2015 was around 202,000 euros.

Others

The Federal Association of German Patent Attorneys e. V. (BDPA) is a voluntary association of patent attorneys. It was founded in 1974 with the aim of cultivating and promoting the professional and economic interests of the profession. In addition to the Chamber of Patent Attorneys, the BDPA is the second nationwide organized interest group for the profession.

Web links

Wikisource: Law relating to patent attorneys. From May 21, 1900 (German Empire)  - Sources and full texts

Individual evidence

  1. ↑ Hubert Olbrich : Committed to a policy of peace - the physicist Freda Wuesthoff . In: Berlin monthly magazine ( Luisenstädtischer Bildungsverein ) . Issue 4, 2001, ISSN  0944-5560 , p. 66-70 ( luise-berlin.de ).
  2. ^ German Patent and Trademark Office (ed.): Annual report 2018 . May 31, 2019, p. 108 ( dpma.de [PDF; accessed June 7, 2019]).
  3. ↑ Federal Law Gazette 2017 I p. 3437
  4. ↑ Federal Court of Justice, judgment of November 29, 2013, Az. PatAnwZ 1/12
  5. ↑ § 158 PAO
  6. ↑ Section 158 (1) sentence 2 PAO
  7. ↑ § 7 Paragraph 3 and Paragraph 5 PAO; Section 32 (1) PatAnwAPrV
  8. ↑ Statistics of the European Patent Office
  9. ↑ Federal Statistical Office (Destatis): Wage and Income Tax Statistics 2015 (PDF)
  10. ↑ www.bundesverband-patentanwaelte.de