Prior use right

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Prior use right denotes a legal position whose owner does not require the permission of the patent or utility model owner to use an inventive subject matter protected by a third-party patent or utility model .

Patent law

Legal basis

The legal basis for the right of prior use is § 12 PatG . According to Paragraph 1 of this provision, the patent does not have any effect on anyone who at the time of filing the application was already using the invention in Germany or who had taken the necessary events. The "effect" of the patent is the (positive) rights of use and (negative) prohibition rights of the patent owner with regard to the invention protected by the patent, standardized in § 9 and § 10 PatG.

Right of priority of the patent proprietor

The patent holder can be entitled to a so-called priority right if he has already applied for a patent (or utility model ) for the invention at an earlier point in time (at home or abroad) . See § 40 and § 41 PatG. If he has effectively exercised the right of priority (within a specific, prescribed period), in this case the date of filing of the current patent, rather than the filing date of the earlier patent (or utility model), is decisive for the right of prior use, Section 12 (2) sentence 1 PatG.

Exemption

Section 12 (1) sentence 4 of the Patent Act regulates an exception to the right of prior use as follows: If the applicant or his legal predecessor has notified the invention to others before filing the application (for the patent) and thereby reserves his rights in the event of the patent application, the person who has learned the invention as a result of the notification, does not claim that he had already used the invention in Germany or had taken the necessary events at the time of filing the patent application (or at the time of filing the earlier patent application for which priority was given). However, the prerequisite is that he takes these measures within six months of the notification, i. H. within the last six months prior to the patent application.

Basically, the acquisition of a right of prior use is not possible if the prior user has acted unlawfully towards the later patent owner or his legal predecessor . This is especially the case if the previous user has dishonestly "borrowed" his knowledge of the invention and thus the possession of the invention from the patent owner or his legal predecessor - by using the invention or by meeting the necessary events.

Sense and purpose of the right of prior use

The legislature sees the purpose of the right of prior use in protecting the existing commercial or economic property of the prior user for reasons of equity. It is unreasonable to destroy economic values ​​created in a legitimate exercise. This is prevented by the right of prior use. An existing acquis should not be invalidated by the patent application of another.

Utility model law

The legal basis for the right of prior use is here Section 13 (3) GebrMG. Accordingly, the provisions of the Patent Act (also) on the right of prior use (Section 12 PatG, see above) must be applied accordingly. With regard to the right of prior use in utility model law, what was said above about prior use right in patent law applies accordingly. The prior use right of the previous user exists here against the owner of the utility model. With regard to the regulation of exceptions to the right of prior use, what was said above about patent law applies accordingly in utility model law.

See also

literature

Web links

  • Right of prior use [1]
  • Right of prior use [2]
  • Right of prior use [3]
  • Right of prior use [4]
  • Right of prior use [5]

Individual evidence

  1. ^ So already the Reichsgericht (RG), in: Journal of Commercial Legal Protection and Copyright (GRUR) 1942, pp. 34, 37
  2. ↑ Benkard, G., Patent Law, Utility Model Law, 10th edition, Munich 2006, p. 464 (marginal note 8 to § 12)
  3. ↑ Federal Court of Justice (BGH), in: GRUR 1964, p. 673; 675 f - Box for step gratings
  4. ↑ Collection of decisions BGH in Zivilsachen (BGHZ), Vol. 39, pp. 389, 397