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Patent

A patent is granted based on an official examination if the invention is novel, involves an inventive step and is susceptible of industrial application. Therefor a patent application has to be filed.

The filing of the patent application starts an application procedure with the office which mainly audits the formal requirements of the application which can be laid down in the patent law, the ordinance of German patent and trademark office (DPMA) or in the Patent Cooperation Treaty (PCT). Here it can be statutory governd if an application has to include beside a description of the invention a drawing, a patent claim and/or an abstract and if a filing fee, examination fee, search fee, transfer fee or handling fee is payable with filing or later. Beside the payment terms there can be regulations about the layout of the records and the drawings and the request. Also the statements about the applicant and inventor (naming of inventors) to be filed are defined.

The independent patent claim defines the scope of protection nationally which already upon publication generates a right of adequate compensation against the rightless user. The publication happens regularly 18(!) month after filing the application with the office.

An invention is novel if the subject matter, the method and/or the use is not foreclosed by anybody orally, in writing or by model worldwide (absolute novelty). "Anybody" always comprises the inventor. Exceptions such as the grace period don't exist in German patent law or those come with strings attached. Examples are the so called exhibition priority or the illegitimate prior publication.

The duration of protection is regularly limited up to twenty years and can be prolongated in exceptional cases (patent of addition, supplementary protection certificate, spc). In all cases there is to pay a continous increasing annuity fee to the German patent office for maintenance the application or the patent protection from the forth year on. The international patent application requires no maintenance fee because the application has to enter into a regional (EPO) or national phase (DPMA) with expiry of 31 month from filing date or priority date at the latest.

With publication of the granted patent only the proprietor is entitled exclusively to use this invention. As long as the use by third party is commercial the patentee can claim inter alia the desist and compensation for damages. Due to the territoriality principle the patent protection is regularly limited within Germany. The exclusive right of use regularly ends with placing the good protected by patent on the market - e.g. selling - within the EEA, as long as this is done with consent of the proprietor. This exhaustion of a German patent occurs in Germany on delivery into the European community if no parallel patents in the supplied state exist.

The granted patent as well as a patent application can be sold or distrained. With a licence agreement the circle of legal users of the invention can be enlarged or altered.

Please note the Legal Notices.