What is a patent?

A patent is a protective right with the character of a monopoly and is granted on request by a patent authority such as the German Patent and Trade Mark Office. To be patentable a technical invention must be new, must involve an inventive step and be capable of industrial application.

Without the permission of the owner of a patent third parties can be barred inter alia from reproducing, using or industrially utilizing the patented invention. With permission of the owner of the patent third parties can be allowed to use the invention under the terms of a licence.

 

What is a patent good for?

A patent gives the owner the right to stop others from reproducing the invention. The patent is virtually the garden fence around the seed that has been sown. It ensures that the fruit is harvested by the person who made the effort to sow the seed in the first place.

 

How does an invention become a patent?

A patent application requires a detailed description of the invention and a definition of the scope of the protection provided by the patent claims. In addition to formal information about the applicant and the inventor(s) an examination request must be filed with the patent office and the requisite fees paid.

After a patent has been granted, it is valid for 20 years from the date of filing. From the third year on maintenance fees are payable, the amount of which increases annually.

 

What can be patented?

The subject of a patentable invention needs to be technical in one way or another. It can be an apparatus, a machine, a device, a chemical substance, a composition of substances, a method of working or a manufacturing process.

The invention needs to include technical teaching. A discovery, a scientific theory, an aesthetic creation and a scheme or method for performing a mental act are not patentable. Today, patents are also granted for microbiological and software inventions as well as inventions in the area of genetic engineering.

 

Who is the inventor, who is the owner?

Anyone can be an inventor. The inventor is the intellectual father of the underlying idea. Honour and glory are due to him. If the inventor was the employee of a company he is entitled to compensation. After the patent has been granted, the applicant becomes the owner of the patent. The financial profit gained from the invention belongs to him.

 

Do I need a patent attorney for a patent application?

German residents do not need a patent attorney to file a patent application in Germany. An application abroad requires representation through a patent attorney appointed to that country. In most cases the inventor / the applicant takes the professional legal advice of a patent attorney for national applications, too.

Detailed knowledge of patent law is indispensable for securing optimum property rights, since the elaboration and wording of the patent claims is of crucial importance for the patent and the ensuing rights. The patent office often rejects faulty applications, which could have been successful with professional support. The consequence may be that vital time is lost or, if a patent is granted, the acquired rights may not withstand later objections or attacks.

 

When should I apply for a patent?

An application should always be made for a patent before the invention is published somewhere, since otherwise the invention is considered as being disclosed to the public and therefore lacks novelty, which is one of the strict requirements of a patentable invention. In Germany and Europe the term "publication" includes oral as well as written communication or any use of the invention in a way that will enable someone to grasp the core of the invention. However, some countries such as the U.S.A. and Japan have a "period of grace", as it is called.

Since an invention requires worldwide novelty, it is advisable to apply for a patent as early as possible. Research groups quite often work on similar topics. Someone else could have the same idea and it might be that this person applies for a patent first. In this case the idea becomes unpatentable for anyone else.

 

What other intellectual property rights are there?

There is also a utility model for technical inventions and a design patent for aesthetic models or design. The copyright protects works of art, science and literature, such as books, as well as computer programmes. Words and logos for goods and services can be protected by trademarks.

Further property rights follow from the plant variety protection law for plants and the semiconductor protection law for microelectronic semiconductor devices.

 

What is the difference between a patent and a utility model?

The utility model is often viewed as a "little patent", since its validity expires after 10 years, and a technical invention need only include an inventive step with little creative activity.

The utility model is quicker, easier and more inexpensive to obtain. However, it is an unchecked property right, since the patent office registers the utility model but does not examine it. Its eligibility for protection is examined in the event of infringement litigation.


There is no general requirement for filing a power of attorney for the representation of clients before courts as well as patent- and trademark offices. However, in particular cases the submission of a power of attorney may be required. It is therefore advisable to deposit a general power of attorney which may be presented in applicable cases.

Power of Attorney for the German Patent- and Trademark Office
German Patents/Utility Models/Trademarks/Design Models German/English
German/English

Power of Attorney for the European Patent Office
European Patents/Euro-PCT-Patents
English

Power of Attorney for civil law matters (doc file)
Enforcement/Litigation/Negotiation/Contracts
German/English

General Terms and Conditions
Kanzlei Gulde & Partner
German