Patent law (Germany)

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In German jurisprudence, patent law is a branch of private law that regulates the creation and effect of industrial property rights for inventions.

history

introduction

Patent library

Patents are granted for inventions in all areas of technology that are new , involve an inventive step and are commercially applicable ( Section 1 (1 ) of the Patent Act ). The invention is to be disclosed in the patent application in such a way that a person skilled in the art can carry it out.

Although only one invention is usually described in patent applications, the patent claims , especially when a basic idea is to be claimed, often claims all possible implementations and uses of the idea (also only discovered in the future).

With the grant of a patent, the owner of the patent is granted a right against anyone to prohibit others from using the invention ( exclusive right ). Although the patent owner is granted the sole right of use (positive right of use ) according to § 9 sentence 1 PatG , this is limited when it comes to the clash with prohibitive rights (e.g. patents) of third parties, which can be older but also younger. One then speaks of a dependent patent. This becomes clear with the following example: If the door is first invented in order to remove the bags in front of the cave entrance, it can be patented. Only the patent holder is then entitled to offer or manufacture doors. If the lock for the door that replaces the locking bar is invented during the term of the door patent, the lock can also be patented. The owner of the lock patent is then not entitled to offer or manufacture a door with a lock, as this would encroach on the owner of the door patent's sole right of use. However, the owner of the door patent is not entitled to lock the doors. Of course, the two patent holders can also team up and sell doors with a lock.

The term of a patent is 20 years from the day after registration. However, the exclusive right only takes effect from the point in time when the grant of the patent has been published in the Patent Gazette. Because the examination process can often take a long time, the actual term of protection is shorter than the term of the patent. In the case of patents for inventions relating to medicinal products or plant protection products, two EU ordinances allow the protection to be extended for a maximum of five years by means of a supplementary protection certificate due to the long duration of the approval process.

In return for the state granting a temporary monopoly, the inventor must disclose his invention (e.g. a device or a process) in a patent specification (hence the name "patent" from Latin patens - "open, free, unobstructed") , so make it accessible to everyone.

As a rule, disclosure by the patent office takes place after 18 months after the priority date through the publication of the patent application as a disclosure document, but not if the application is filed on time, i.e. H. is withdrawn before completion of the technical preparations . The applicant is free to request early disclosure.

In Germany these documents are called Offenlegungsschrift (disclosure of the application) and patent specification (granted patent). These documents are publicly accessible and can now also be researched online, for example via DEPATISnet or Espacenet ( see web links ).

Society uses the reward through the temporary monopoly to motivate the inventor to make his knowledge accessible and generally usable after the protection period has expired. In November 2012 , Pfizer 's patent for Viagra was revoked by the Canadian Supreme Court because the disclosure about the invention and its functionality had not taken place. However, this is a prerequisite for being able to grant a temporary monopoly of exploitation in the form of patent protection.

As with the introduction of the patent system, there are again discussions about the economic and social meaning and purpose of the patent system (see the articles software patents , computer-implemented inventions , trivial patents and business methods ).

Secret patents

If a patent contains a state secret ( Section 93 StGB ), secrecy can be ordered for it (secret patent ). This can apply if the invention relates to a military secret or if the invention is to be regarded as such. The patent specification will then not be published and penalties may be imposed if the invention is submitted outside the scope of the law without authorization or if confidentiality is otherwise violated. Secret patents are kept in a separate register, and the owner of the patent is entitled to compensation from the Federal Republic of Germany if he cannot (sufficiently) use his patent because of the secrecy.

Utility model

Title page of an entry in the utility model roll of the Reich Patent Office , Keskari company , 1933.

Colloquially, utility models and trademarks are (incorrectly) often referred to as patents.

In contrast to a patent, a utility model is not a checked property right, but a pure registration right. For a utility model to be legally valid, the protected invention must also be new, be based on an inventive step and be commercially applicable. However, it is not the absolute, but a restricted concept of novelty that applies. Only written descriptions (worldwide) or domestic uses of the invention before the priority date are detrimental to novelty . Publications by the inventor within 6 months before the priority date of the utility model by him or his legal predecessor are irrelevant in the assessment of novelty (so-called grace period).

Since the Federal Court of Justice's decision on the “demonstration cabinet” , the demands on the level of inventiveness have been just as high as with a patent, although the utility model law speaks of an inventive step as a precondition for protection instead of inventive activity. Thus, the material protection requirements of the utility model essentially correspond to those of the patent. Regardless of this, there are other differences to the patent (e.g. lower registration costs, shorter maximum term of 10 years, no protection of procedures).

In contrast to patents, the following differences must be observed with utility models:

  • The entry is made without examination by the patent office. The examination will only be rescheduled in the event of a dispute, either in response to an objection in a utility model infringement procedure or in a utility model cancellation procedure.
  • Processes cannot be protected with a German utility model.
  • Some countries have no utility model law, but only a patent law.

The way to the patent

Several years can pass from the application to the granting of the patent, in this case nine years.

Patent application

To obtain a patent, a patent application must be submitted to the German Patent and Trademark Office or the European Patent Office . Different patent laws are applied depending on the type and location of the application. These offices also an international patent application under the can Cooperation Treaty (PCT - Patent Cooperation Treaty) be submitted. In a PCT application, more than 150 states can be named in which the application is to be valid. Only after 30 or 31 months from the priority date must the individual national applications be continued before the individual national or regional offices, i.e. the national phases (translation into the respective national language, representation by a patent attorney on site) must be initiated.

Priority claim

To make it easier to obtain international patent protection, the priority of the first application for an invention can be claimed for one year in other countries, except for applications from and in countries that are not party to the Paris Convention . This means that you can file a patent application in Germany on January 8, 2002 and then have one year until January 8, 2003 to file it in other countries. It depends on the receipt of the application at the respective patent office ( first to file ), so that effectively less time remains for processing, as applications usually have to be written in the official language of the respective country. Applications can be submitted to the German Patent and Trademark Office in any recognized language if a corresponding translation into German is submitted within three months. European patent applications must either be filed in one of the three official languages ​​of the European Patent Office (German, English, French) or translated into one of the three official languages. The EPO also allows proceedings to be carried out in German, English or French; the official language chosen when filing the application documents will be the language of the proceedings and will be retained for the rest of the proceedings before the EPO. If the examining division responsible for examining the European patent application promises the grant of a European patent, the claims that are ready for grant must also be translated into the other two official languages ​​from the application documents. In the patent specification issued by the EPO, the claims are then published in the three official languages ​​together with the description in the language of the proceedings.

invention

Patentable inventions are technical doctrines for systematic action which bring about a causally foreseeable success using controllable natural forces without the interposition of intellectual activities.

Discoveries , for example knowledge of how something works, and in particular plant and animal species, are not regarded by law as technical inventions and are therefore not patentable. A planned use of a discovery (e.g. extraction of an active ingredient from a plant) is patentable again if the active ingredient is known, but the effect (i.e. the planned use) was previously unknown.

A supposed perpetual motion machine is not exempt from patenting per se , but the technical teaching cannot be implemented. The clear presentation of the technical teaching is a requirement for patentability and includes the implementation of the technical teaching, which in turn results from the patent specification or the application.

Nor can scientific theories and mathematical methods, aesthetic creations, plans, rules and procedures for intellectual activities, for games or for business activities, or programs for data processing systems , according to Section 1 (2) and (3) of the Patent Act and Art. 52 (2) and (3) EPC and the reproduction of information as such is protected by patent law. In these areas, it remains an open question whether it is an invention or not, because such inventions are not accessible for patent protection.

Furthermore, according to § 2 PatG and Art. 53 EPC no patent protection can be granted for inventions, the publication or exploitation of which would violate public order or morality. This exemption is to be interpreted narrowly. For example, weapons, explosives and poisonous substances are not generally covered by the exemption from this standard, even if they can be misused against public order. Plant varieties (see plant variety protection ) or animal species as well as essentially biological processes for the breeding of plants or animals also fall under the exception regulation of Section 2 PatG and Art. 53 EPC .

However, it is possible to patent methods of exploiting or applying discoveries; therefore, for example, patents on a healing method based on the decoding of the human genome can be granted. Likewise, isolated components of the human body obtained from technical processes, including gene sequences, are patentable, but not the human body in the individual phases of its formation and development § 1a . For these very different types of patents, opponents often use the vague term patent on life .

The demarcation between technical inventions and non-technical inventions often causes problems, especially with so-called computer-implemented inventions (often referred to as software patents ) it is difficult to assess the technical contribution to the state of the art. As a basic rule, technicality is given when there is a technical effect that goes beyond just running in a computer. In order to examine the inventive step in relation to the prior art, however, only features of the invention that are not suggested by the prior art and that are technical are considered. In short: only technical features can make the subject of the invention inventive.

Inventive activity (inventive step)

A further technical development is only a patentable invention if it does not result in an obvious way from the state of the art for "the average skilled person who knows the entire state of the art" (a legal fiction, not a real person) ( § 4 p 1 PatG, Art. 56 sentence 1 EPC). That is, there is a lack of inventive step when you can expect from this expert that he, starting from the prior art to this solution would come soon and with a reasonable cost, without an inventive step.

According to the case law of the Federal Patent Court , the Federal Court of Justice and the technical boards of appeal of the European Patent Office, this criterion is to be understood in a purely objective manner. It does not matter how the invention to be assessed was actually made and whether it subjectively meant a special achievement for the inventor.

In general practice, a lack of inventive step leads to the rejection of the patent application and in the vast majority of cases the revocation or annulment of patents is the decisive reason.

However, the assessment of the level of invention causes a certain uncertainty in practice, because it can only be made with knowledge of the invention ( retrospective view ) and thus depends largely on a value judgment and also the subjective opinion of the person making the judgment. At the EPO, this problem is countered by inferring the technical problem solved thereby from the technical contribution of the invention to the state of the art and assessing the inventive step according to whether the solution of this problem was obvious in the light of the state of the art ( problem Solution approach ). The document that comes closest to the invention is used as the closest prior art and a task is formulated on this basis. It is then checked to what extent a solution for this problem is known from the prior art, so that the person skilled in the art would combine these disclosures. In order to deny inventive step, it is not sufficient that the person skilled in the art could combine these disclosures, rather it must be explained why the person skilled in the art would combine these disclosures with one another ( could-would approach ).

In the German case law of the BGH, only a slightly different approach is followed. The object of the invention is deduced from the technical problem on which the invention is based. The task mentioned in the patent application is only an aid in determining the objective technical problem. The focus here is on what the invention really does compared to the prior art. On the basis of this, a mosaic-like synopsis is examined as to whether there were any impulses, suggestions or indications for the person skilled in the art to seek a solution to the technical problem along the way of the invention. To what extent and with what concretization the person skilled in the art needs suggestions in the state of the art in order to further develop a known solution in a certain way is a question of the individual case, the answer to which requires an overall consideration of all relevant facts. In order to deny an inventive step, it is not sufficient here either that the person skilled in the art simply does not find any obstacles preventing them from arriving at the subject matter of the invention from what is known in the prior art (analogous to the could-would approach ).

For inventions that did not have the inventive step required for a patent, it was previously possible to obtain protection by filing a national utility model application because the utility model required a lower inventive step (inventive step). This is no longer the case since the BGH decision of June 20, 2006 (Az: X ZB 27/05 - "Demonstration cabinet"). Rather, the utility model now requires the same level of inventiveness as the patent, since the aforementioned judgment equated the necessary inventive step with the inventive step of the patent.

novelty

An invention is new if it has not previously been part of the "state of the art" ( Section 3 PatG and Art. 54 EPC). The state of the art includes everything that was publicly available before the filing date or that was known or accessible before the priority date if a priority (in particular the Union priority under the Paris Agreement) was claimed. This also includes publications by the inventor himself: If he has already presented his invention to the public, for example at an exhibition, this can already be “detrimental to novelty” for him. In the German and European patent systems, however, an exhibition priority can be asserted if the disclosure by the inventor takes place at an official or officially recognized exhibition within the meaning of the agreement on international exhibitions (world exhibitions and international specialist exhibitions) signed in Paris on November 22, 1928, or a grace period for novelty if the disclosure constitutes a violation of a confidentiality agreement, as is common in cross-company cooperation, or which can also result implicitly from an employment relationship. If the subject of the application was shown at a corresponding exhibition, this fact must be stated when the application is submitted.

The novelty is assessed according to the claimed invention, that is, the combination of all the claimed features; it is therefore harmless if some or all of the features of the invention were already known per se. Because even if all elements were known individually, their combination in the specific device or in the specific process may still have been unknown. However, even the inventive step (in Germany often: then to the patentability of inventive step ) is decisive.

The concept of novelty is not subject to any time or space restriction, as everything that was known before the filing date is taken into account. Knowledge that has emerged again is not considered new, even if it has been completely forgotten in the meantime (e.g. a cure that was found in a mummy ).

In order to prevent double patents, previously filed patent applications within the same patent system are also used for the novelty check, even if these had not yet been disclosed on the filing date (so-called older, postpublished applications). As a result, the application filed earlier belongs to the state of the art that is detrimental to novelty compared to the more recent application ( first to file , see above ). If, for example, an application is filed on January 8, 2002 and a further application for the same invention on January 9, 2002, no patent can be granted for the later application due to lack of novelty. However, if the application is made in different countries, i.e. in different patent systems, both patents can coexist in their respective areas of application. If two applications for the same invention are filed on the same day, both will receive a patent if granted. The time of submission does not matter.

Commercial applicability

The invention must also be applicable in any commercial field - including agriculture ( Section 5 (1) PatG, Art. 57 EPC).

As a result, according to the patent law tradition that is still alive today, especially in the Romanic countries (FR, BE, ES), inventions are excluded from patenting that do not work, are not yet technically feasible or whose implementation no material products are brought onto the market. In Germany, “commercial applicability” hardly exists as an independent test criterion, but is rather subsumed under the question of disclosure of the invention in the application ( Section 34 (4) PatG). According to European patent law, in addition to industrial applicability, there is also the requirement of sufficient disclosure (Art. 83 EPC). In Germany, “industrial” was translated as “commercial”, which in turn is often used as an argument for weakening the term at international level.

The concept of industrial applicability is widely understood at the European Patent Office and is of secondary importance in practice. It does not matter whether the claimed object is actually used in a trade . It is sufficient that it can be manufactured or otherwise used in a technical commercial enterprise. Therefore, for example, teaching aids for schools or devices for liturgical use are also patentable. It is also irrelevant whether one can “make money” with the device or the method, the only decisive factor is that the claimed subject matter can be used outside of privacy.

Methods for surgical and therapeutic treatment and diagnosis on the human or animal body ( Section 5 (2) PatG, Art. 52 (4) sentence 1 EPC 1973) were previously not considered to be commercially applicable ; they may not be patented according to Section 2a Paragraph 1 No. 2 PatG. However, this does not apply to products, in particular substances or mixtures of substances, for use in such a process. For this reason, surgical instruments and pharmaceuticals, for example, can be patented (because they can be manufactured in a technical commercial enterprise).

The Diplomatic Conference of November 2000 also decided to delete Art 52 (4) EPC, so that this last remnant of the traditional meaning of “industrial application” disappears from the law and thus it It is even more difficult to restore this test criterion to its original meaning. However, since the paragraph has only been moved to Art. 53 EPC ( exceptions to patentability ), little is likely to change in practice.

In its vote of September 24, 2003 on the Software Patent Directive, the European Parliament voted in favor of a redefinition of "industrial" as "linked to the automatic production of material goods" in accordance with one of a number of proposed amendments in Art. 2d . The corresponding template and its predecessor were rejected by the EU Council (working group of national patent offices). Such a definition would in fact exclude any non-automatic production process and any process that is not a production process from patent protection, i.e. a large number of inventions that are now undisputedly patentable would then no longer be patentable.

Duration of the granting process

In Germany, a patent procedure takes an average of two to two and a half years if the formal requirements (registration deadline, payment of fees) have been met. In individual cases, however, this can take much longer. In a few cases, it is issued before disclosure, i.e. after less than 18 months.

End of patent protection

The maximum term of a patent is according to § 16 PatG, Art. 63 (1) EPC 20 years from the day after the application. According to § 16a PatG, Art. 63 (2) b) EPC i. V. m. Reg. (EEC) No. 1768/92, however, a supplementary protection certificate can be issued for inventions that can only be economically exploited after a complex approval process (especially clinical studies for medicinal products), which then extends the patent term by a maximum of five years.

A patent expires prematurely if the renewal fee is not paid, so that it no longer exists from this point on (ex nunc). A patent can also expire when the patent owner expresses his written waiver to the Patent and Trademark Office.

Furthermore, a patent can be revoked or declared null and void. Third parties also have the opportunity to attack a patent that has already been granted.

In opposition proceedings anyone can against the patent within 9 months after publication of the patent appeal raised. This must be explained in writing and the reasons given ( Section 59 (1) PatG; Art. 99 (1) EPC). The opposition can only be based on the reasons given in § 21 PatG or Art. 100 EPC, for example if the invention applied for is not patentable , has not been fully disclosed , an unlawful removal was present (not with the European patent) or the original patent application has been improperly extended . In opposition proceedings, each party has to bear its own costs. The opposition procedure is therefore more cost-effective than the nullity procedure explained below.

After the objection period has expired, there is only the option of bringing an action for annulment. An action before the Federal Patent Court against the patent owner is necessary for the annulment of a validly granted patent . The reasons given in Section 21 of the Patent Act can also be cited as grounds for invalidity , whereby the inadmissible extension of the originally granted patent can also be submitted ( Section 22 of the Patent Act). The action for annulment against the European patent will also be brought before the Federal Patent Court - but only insofar as its effect for the Federal Republic of Germany is concerned. The grounds of invalidity for the European patent regulated in Art. II § 6 of the Law on International Patent Conventions correspond almost entirely to those for the German patent. The decision in nullity proceedings is made after an oral hearing and ends with a judgment ( Section 84 PatG). The costs of the proceedings will be decided in the judgment, whereby in principle the provisions of the ZPO are to be applied, so that as a rule the unsuccessful party has to bear the court costs and the costs of the other party in addition to his own. An appeal can be lodged against the judgment of the nullity senate of the patent court within one month after the judgment has been served ( Section 110 (1) sentence 1 PatG). The appeal must be submitted in writing to the Federal Court of Justice and justified in writing within a further month. Representation by any lawyer or patent attorney is required for both.

Successful nullity suits can retrospectively eliminate claims for damages from infringement of property rights.

Effects

Effect of registration

The application of the patent does not protect against further applications with the same content being made simultaneously or subsequently.

Effect of Disclosure

From the date of disclosure of the patent, regardless of any subsequent granting of the patent, the content is considered state of the art. After disclosure, the applicant is entitled to a claim for compensation, but no further claims, e.g. for omission.

Effects of the granted patent

In accordance with Art. 64 (1) EPC, an EPO patent has the same effect in each contracting state for which it is granted as a national patent of that contracting state. Questions of patent infringement are judged according to national law, in Germany according to the Patent Act.

With the granting of a patent by the patent office, the patent owner is granted an exclusive right to use the patented invention for the duration of the patent term . In the period between the patent application and the granting of a patent, the law only grants the applicant for an invention a claim to compensation in accordance with Section 33 PatG, i.e. the patent applicant can request the payment of a hypothetical license fee. It should be noted, however, that this aforementioned claim lapses retrospectively in accordance with Section 58 (2) PatG if the application does not lead to the hoped-for grant, for example because it is withdrawn or rejected.

Material scope of protection

According to § 14 PatG, Art. 69 EPC (with separate interpretation protocol) the scope of protection of patents is determined by the patent claims . The description and the drawings should be used to interpret the claims. This is intended to simplify the property right research for third parties.

In addition to the literal use of the claimed subject matter (i.e. all features of claim 1), patent protection also extends to equivalents of the invention, depending on national law . This is understood to mean forms of infringement that no longer fall under the wording of the patent claim, but achieve the same effect as the protected invention by using one or more equivalent means. Conversely, the alleged patent infringer is open to the so-called molded stone objection : According to this, a patent is not infringed if the challenged embodiment emerged from the prior art in an obvious manner for the person skilled in the art at the time of priority.

No right of use

A patent only gives its owner a positive right of use to a limited extent , as can be seen from the fact that § 9 sentence 1 PatG refers to the “framework of applicable law” for the right of use of the patent owner. The primary consequence of patenting is that the invention may in principle not be used commercially by anyone other than the patent holder himself. However, whether a (patented or unpatented) invention may actually be used by the patent owner, for example in the case of the invention of an active pharmaceutical ingredient through the marketing of a drug , depends on the general regulations, e.g. the Medicines Act with a special approval procedure. These provisions, which serve to protect consumers from unsafe preparations (see police law ), are not even checked by the patent office. In particular in the case in which the use of a patent would interfere with patents of third parties - for example in the case of patented further developments - the patent then designated as dependent does not grant any right of use. With regard to the relative legal position vis-à-vis other property rights and / or counter-rights, the “positive right of use” according to the wording of the law can be important in special cases.

Exclusive right

In accordance with Section 9, Section 9 of the Patent Act, the patent holder has the right to exclude others from using the invention. The holder of a product patent has the right to prohibit third parties from manufacturing, offering, placing on the market , using, owning or importing the product . In the case of process patents, patent protection extends not only to the application and offering of the protected process but also to objects that are the direct products of the protected process (also Art. 64 (2) EPC). The assignment of rights in accordance with Section 9 of the Patent Act is supplemented by a corresponding injunction claim in accordance with Section 139 (1) of the Patent Act.

The patent holder can wholly or partially (but not the inventor's personality right) according to § 15 , § 23 PatG transferred to others by license .

Section 11 of the Patent Act provides for certain exceptions to the effect of the patent. The protective effect of a patent does not extend to the private sphere , i.e. anyone can use a patented invention for personal use. Furthermore, the use for experimental purposes is optional. Exactly what an attempt is always leads to controversy, but this regulation is interpreted throughout Europe in such a way that an attempt is any planned procedure to gain new knowledge, whereby these findings must relate to the invention used itself. The experimental privilege exempted from the effects of the patent, therefore, among other things, attempts to check the patentability of an invention or for the purpose of further development and circumvention. Despite the experimental set-up, the routine use of protected laboratory equipment for experiments that relate to other objects is still prohibited. Other exceptions to the protective effect are prior use and the immediate individual preparation of a drug by a pharmacist on the basis of a doctor's prescription.

In addition, the principle of exhaustion is recognized under customary law , according to which products in accordance with the patent are no longer covered by the exclusive right of the patent holder as soon as they have been brought into circulation by the patent holder himself or with his consent by a third party.

Finally, § 13 , § 24 PatG as expropriation regulations i. S. v. Art. 14 para. 3 GG , if there is a corresponding public interest, the granting of compulsory licenses by the Federal Patent Court (BPatG). However, these provisions have not achieved great practical importance.

In Germany, as in most other countries, there is no obligation to use it , that is, the patent holder neither has to license the patent nor is he forced to sell the patent.

The protective effect takes effect on the day the patent is published. The term of protection can also be shortened by not paying the annual fees. These annual fees increase every year so that patents that are no longer required can be released as soon as possible. The damage caused by the prohibition law in the future will also increase.

Claims for damages and enrichment

In addition to the right to cease and desist , the patent proprietor who has been infringed in his exclusive right is entitled to compensation for damages in accordance with Section 139 (2) of the Patent Act if the infringer acted with intent or negligence . The circle of negligent action is traditionally drawn very broadly by case law, because anyone who uses a device commercially or applies a process commercially can be required to find out about the property rights situation in the respective technical field.

According to jurisprudence, compensation can be calculated using three different methods. These are the lost profit, the license analogy and the surrender of the infringer's profit . The injured person has the right to choose between the three calculation methods. At will, he can demand that he be reimbursed for the profit that he would otherwise have made through his own use of the patent, that he be treated as if he had concluded a license agreement with the infringer on the customary market conditions, or that he profit made by the infringer through the infringement is released. The latter variant is, however, rather uncommon because the disclosure of the company's books is required to determine the lost profit and this requirement is generally not followed up with pleasure. For a long time it was problematic in legal practice that the infringer was able to reduce the infringer's profit to be surrendered by taking his overhead costs very far into account and in this way could "pay off poorly". The decision of the BGH “overheads share” has significantly restricted this possibility, so that the surrender of the infringer's profit has gained considerably in importance in recent times.

In addition to compensation, the patent owner can also surrender the unjust enrichment acc. Section 812 (1) sentence 1 2nd alt. BGB demand what is important in cases of lack of fault on the part of the patent infringer.

Right to information

In addition, pursuant to Section 140b of the Patent Act , the injured patent holder has the right to information about the origin and distribution channel of the product used. In doing so, information must be given about the name and address of the manufacturer, the supplier and other previous owners, the commercial buyer or client, as well as the quantity of the manufactured, delivered, received or ordered products. Furthermore, the injured party has the right to information about the facts necessary to calculate the claim for damages after a judicial training that has been strengthened to common law . The information must enable the injured party to choose between the three types of compensation mentioned above. The information must be given in writing and in an orderly form. This is why one also speaks of accounting .

In most patent infringement proceedings, the right to information is central: The aim is to obtain information about the competitor's production, distribution channels, etc. with the means available. The court can even order a visit to the production facility in order to be able to decide whether there is a patent infringement. Claims in money - as long as they do not involve particularly large sums in absolutely exceptional cases - are of secondary importance because the outcome of such patent infringement proceedings is often not reliably predictable. Interesting information about the competitor's operation can also be obtained in the course of a largely lost process.

Even with a mere patent reputation there is a right to information according to Section 146 PatG.

Annihilation claim

In addition, pursuant to Section 140a (1) PatG , the infringed patent holder can demand that the product in the possession or property of the infringer and which is the subject of the patent is destroyed, unless the state of the product caused by the infringement is transferred to others Wise can be eliminated and the destruction would be disproportionate for the infringer or owner in individual cases. There is also a right to destruction if it concerns a product that has been directly manufactured by a process that is the subject of the patent.

Recall claim

Finally, pursuant to Section 140a (3) of the Patent Act , the injured patent holder can demand that products that are the subject of the patent be recalled or permanently removed from the distribution channels, unless the claim is disproportionate in the individual case. A recall claim also exists when it comes to products that have been directly manufactured using a process that is the subject of the patent.

Procedural enforcement

The patent owner can enforce the rights set out above in the event of infringement of his patent in court in civil proceedings against the infringer.

In order to enforce his rights more quickly, the patent proprietor can also apply for temporary injunctions . In patent disputes, however, the courts often only grant an injunction by way of a decision in the case of technically simple facts and clear forms of infringement. Injunctions in patent cases are often rejected because, in the opinion of the court, the technical facts are not suitable for an injunction procedure. As in all cases of the interim injunction, in cases of particular urgency this can be issued without the right to be heard for the defendant. In this case, the defendant can use the objection to hold an oral hearing in which the legality of the injunction is to be decided. If the application subsequently proves to be unfounded, the applicant must inform the respondent in accordance with § 945 Code of Civil Procedure to compensate for all damage regardless of his fault .

The willful patent infringement according to § 142 Abs. 1 PatG is a criminal offense . Therefore, criminal investigative measures such as house and company searches as well as account freezes can be based on patent infringements in individual cases. The criminal prosecution of patent infringers is of little importance in practice, as the patent proprietor often has no interest in prosecuting the infringer. In particular, the patent owner must prove the intent of the infringer. There are tendencies to proceed against importers of patent-infringing cheap copies from abroad in this way.

literature

Text collections

  • Friedrich-Karl Beier, Andreas Heinemann (ed.): Patent and design law . CH Beck, Munich 2008, ISBN 978-3-406-56963-0
  • Andreas Heinemann (Ed.): Commercial legal protection, competition law, copyright . Loose-leaf collection. CH Beck, Munich 2008, ISBN 978-3-406-45350-2
  • Florian Mächtel, Ralf Uhrich, Achim Förster (eds.): Intellectual property. Collection of regulations on commercial legal protection, copyright and competition law . 2nd Edition. Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150108-1

Web links

Wiktionary: Patent  - explanations of meanings, word origins, synonyms, translations
Commons : Patents  - collection of images, videos and audio files

Individual evidence

  1. ↑ Feasibility of inventions at ipwiki.de
  2. ↑ Schulte, Kühnen: PatG . 8th edition. Section 9 PatG Rn. 5 ff.
  3. ↑ Comments on publication at ipwiki.de
  4. ↑ One out of 260 trillion . ORF of November 9, 2012, accessed on November 9, 2012.
  5. ^ Alfred W. Kumm: On the current patent protection of secret inventions. In: Protection of State Secrets and Patent Protection of Secret Inventions - Review, Critical Situation and Outlook. Bock u. Herchen, Bad Honnef 1980, ISBN 3-88347-047-3 , pp. 31-36.
  6. ↑ ipwiki.de
  7. ↑ versions for grace period at ipwiki.de
  8. ↑ a b BGH decision of June 20, 2006, Az: X ZB 27/05
  9. ↑ Exclusion of procedural claims at ipwiki.de
  10. ↑ Decision of the BGH of March 27, 1969, X ZB 15/67, "Rote Taube", GRUR 1969,672-676
  11. ↑ Art. 52 EPC european-patent-office.org
  12. ↑ Art. 53 EPC european-patent-office.org
  13. ↑ Michael Odenwald: Patents on life: When man plays God . In: Focus-Online . May 6, 2010 ( focus.de ).
  14. ↑ ipwiki.de Patent Law: Technical Contribution
  15. ↑ Art. 56 EPC ( Memento of the original of April 17, 2004 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. european-patent-office.org @1@ 2Template: Webachiv / IABot / www3.european-patent-office.org
  16. ↑ Guidelines for Examination in the European Patent Office, Part G, Chapter VII, 5
  17. ↑ Guidelines for Examination in the European Patent Office, Part G, Chapter VII, 5.3
  18. ↑ BGH, judgment of February 4, 2010 - Xa ZR 36/08 - joint arrangement
  19. ↑ BGH, ruling v. April 30, 2009 - Xa ZR 92/05 - Operation of a safety device
  20. ↑ BGH, decision of December 20, 2011 - X ZB 6/10 - Installation device II
  21. ↑ BGH, judgment of December 8, 2009 - X ZR 65/05 - one-piece eyelet
  22. ↑ Art. 54 EPC european-patent-office.org
  23. ↑ Art. 57 EPC ( Memento of the original dated April 7, 2004 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. european-patent-office.org @1@ 2Template: Webachiv / IABot / www3.european-patent-office.org
  24. ↑ Art. 83 EPC european-patent-office.org
  25. ↑ Therapeutic procedures at ipwiki.de
  26. ↑ on this information at ipwiki.de
  27. ↑ FAQ. German Patent and Trademark Office
  28. ↑ BGH, judgment of April 29, 1986, X ZR 28/85, GRUR 1984, 803 - Formstein
  29. ↑ Usage and prohibition rights at ipwiki.de
  30. ^ BGH judgment of November 2, 2000, I ZR 246/98
  31. ↑ Osterieth: Patentrecht 3rd edition, p. 202 No. 491