Patent assessor

from Wikipedia, the free encyclopedia

In Germany, patent assessor is the term for a professional qualification that is obtained by successfully passing a state examination and proving the legal knowledge required for the profession of patent attorney . The qualification as a patent assessor is the most important requirement for admission to the patent attorney's office.

exam

In accordance with Section 11 Paragraph 1 of the Patent Attorney Code (PAO), the prerequisite for being entitled to use the designation "Patent Assessor" is passing the examination in accordance with Section 8 PAO. For EU or EEA foreigners and Swiss people who already have the professional qualification for patent attorney activities in their home country, there is a special aptitude test in accordance with the law on the activities of European patent attorneys in Germany (EuPAG).

Requirements for admission to the examination

Application and technical qualification

Admission to the examination takes place upon application to the President of the German Patent and Trademark Office (DPMA), who decides on the application, Section 10 (1) PAO.

The applicant must prove the acquisition of a technical qualification ( § 6 PAO) and the prescribed training in the field of industrial property protection ( § 7 PAO) or a certain long-term activity as a patent clerk.

The technical qualification is acquired when a study of natural science or technical subjects at a scientific university in Germany or an equivalent study abroad has been successfully completed through a state or academic examination. In addition, at least one year of practical technical activity must be completed. Exceptions are possible if the applicant can prove that he has acquired the practical technical activity required for the profession of patent attorney in another way.

Training in the field of industrial property protection

The rule for admission is the completion of an individual training course specified in § 7 PAO (so-called candidate period):

  1. The training period (after acquiring the technical qualification) lasts 34 months and must generally be completed in Germany. It consists of (at least) 26 months with a patent attorney or patent assessor, 2 months with the DPMA and 6 months with the Federal Patent Court . Training at a court for patent litigation can be credited with up to 2 months to training with a patent attorney or patent assessor.
  2. On request, practical training in the field of industrial property protection that is carried out abroad can be credited for up to six months towards training with a patent attorney or a patent assessor.
  3. A degree in general law is to be completed at a university, which covers the areas of law necessary for a patent attorney or patent assessor. These include the basics in the areas of contract law , employment contract law , commercial law , judicial procedural law , constitutional law , general administrative law and European law . The course must be completed with an examination. A two-year special course has been set up at the FernUniversität Hagen for this purpose. To date, this course is the only recognized course specifically designed for patent attorney candidates.

Alternatively, a first state examination in law or a bachelor's degree in law covering the aforementioned areas of law would be possible.

Activity as patent clerk

Those who did not or could not complete the regulated training according to § 7 PAO can still be admitted to the examination according to § 158 Paragraph 1 PAO if they have been working full-time as a consultant or representative for a client for at least ten years due to a permanent service or similar employment relationship has exercised in the field of industrial property protection and within the scope of this Act is still exercising such an activity that is significant in nature or scope. For applicants who have passed the European qualifying examination for professional representatives before the European Patent Office , the period is at least eight years. A technical college or vocational college degree is sufficient as proof of technical qualification.

Theoretically, admission would also be possible at a university of applied sciences or technology that has already begun but has not been completed for special reasons (Section 158 (2) PAO). However, for this approval u. a. proof of at least 10 years of work as a patent clerk before 1966. This special regulation was aimed at the warring generation.

Content of the exam

According to sentence 1 of this provision, the necessary legal knowledge must be proven by a two-part written and oral examination before the examination committee formed at the DPMA ( Section 9 PAO). "The examination is particularly to be aimed at whether the applicant has the ability to apply the rules of industrial property law in practice, including the knowledge of general law required for their application; it should extend to all areas of industrial property law in which the patent attorney is concerned may advise and represent ", § 8 sentence 2 PAO. The exam takes place three times a year in Munich. It is to be filed in German.

Special rules for EU or EEA foreigners and Swiss

Anyone who is a citizen of a member state of the European Union or another signatory to the Agreement on the European Economic Area or Switzerland already has the professional qualification to work as a patent attorney can pass a special aptitude test to become a patent assessor. This aptitude test examines the ability to practice the profession of patent attorney in Germany. Evidence of the professional requirements for direct access to the foreign patent attorney's profession must be provided.

Admission to the aptitude test is granted upon application. The aptitude test carried out by the commission responsible for the patent assessor examination also consists of a two-part written and an oral part. It must also be filed in German.

Training and examination regulations

The training and examination regulations (PatAnwAPO) complement the PAO. It regulates details of the admission requirements for the examination as well as the conduct of the examination itself and the evaluation of the examination results. In detail, a first part (Sections 1 and 2, Sections 1 to 24 PatAnwAPO) deals with training in the field of industrial property protection ( Section 7 PAO). A second part (sections 1 to 3, §§ 26 to 40 PatAnwAPO) is dedicated to the examination ( § 8 PAO). A third part ( §§ 43a to 43l PatAnwAPO) regulates the maintenance of applicants. A fourth part ( §§ 44 to 44g PatAnwAPO) regulates the examination according to § 1 of the law on the aptitude test for admission to the patent attorney's office (PAZEignPrG). Finally, a fifth part ( §§ 45, 46 APrPatAnwAPO) deals with transitional and final provisions .

Competencies

The powers of a patent assessor result in particular from Section 155 (1) PAO. A patent attorney may " advise and represent" "a third party" in accordance with Section 3 Paragraphs 2 and 3 PAO.

Personal restriction

In contrast to a patent attorney, who is an independent body responsible for the administration of justice, the restriction applies to the patent assessor that he may only act as a representative or authorized recipient for his employer (referred to as the employer in the legal text ). The patent assessor may also act for companies affiliated with the employer or in a group (referred to as third parties in the legal text ) if "the third party and the employer of the patent assessor in relation to one another group companies ( § 18 of the Stock Corporation Act (AktG)) or contractual parts of a company contract ( § 291 and § 292 of the Stock Corporation Act (AktG)); or the third party has neither domicile nor branch office in Germany and he has contractually assigned the protection of his interests in the field of industrial property protection to the employer of the patent assessor ". The job description of the patent assessor roughly corresponds to that of the US in-house counsel .

Powers for proceedings

From a factual point of view, the patent attorney has the powers of a patent attorney . In detail these are:

  1. " to advise others in matters of obtaining, maintaining, defending and challenging a patent , a supplementary protection certificate for a utility model , a registered design , the protection of a topography , a trademark or another trademark protected under the Trademark Act (industrial property rights) or a plant variety right To represent to third parties;
  2. to represent others before the patent office and the patent court in matters that belong to the business sphere of the patent office and the patent court;
  3. to represent others before the Federal Court of Justice in proceedings for a declaration of invalidity or withdrawal of a patent or supplementary protection certificate or for the granting of a compulsory license ;
  4. to represent others before the Bundessortenamt in matters of plant variety protection ,
  5. "in matters for which a question is of importance that relates to an industrial property right, a data processing program , an unprotected invention or any other service enriching technology, a plant variety right or an unprotected service in the field of plant breeding that enriches crop production or for whom a legal question directly related to such a question is important to advise others and to represent them vis-à-vis third parties, even if the requirements of paragraph 2 no. 1 are not met;
  6. to represent others before arbitration tribunals and other administrative authorities ".

The patent assessor, like the patent attorney, has the right to speak in court in certain legal disputes .

See also

Individual evidence

  1. ^ Text of the Patentanwaltsordnung
  2. ↑ a b Text of the Act on the Activities of European Patent Attorneys in Germany (EuPAG)
  3. ↑ "The president decides on the equivalence in consultation with the responsible supreme state authority of the state in which the patent office is located", Section 6 (2) sentence 2 PAO.
  4. ↑ § 44 Paragraph 1 Training and Examination Regulations (PatAnwAPO); § 12 Patent Attorney Training and Examination Regulations (PatAnwAPO); Sections 1 and 2 of the Act on the Activities of European Patent Attorneys in Germany (EuPAG)
  5. ↑ § 3 Paragraph 1 PAO
  6. ↑ Section 155 (1) PAO
  7. ↑ Section 155 (2) PAO
  8. ↑ Section 3 Paragraphs 2 and 3 PAO

literature

  • Günter Kelbel, Commentary on the Patent Attorney Code, Cologne, Berlin, Bonn, Munich 1974

Web links