Patent protection in Germany: German patent application at a fixed price by a German Patent Attorney

According to Section 1 (1) of the German Patent Act (PatG), patents are granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. A patentable invention can concern products, devices as well as processes.

A protectable invention must be new, must be based on an inventive step and must be industrially applicable. According to Section 3 (1) German Patent Act, an invention is considered “new” if it does not form part of the state of the art, the state of the art shall be held to comprise all knowledge made available to the public before the date governing the filing or priority date of the application by means of a written or oral description, by use or in any other way. In contrast, an invention is considered to be based on an “inventive step” if it is not obvious to a person skilled in the art. Finally, there is “industrial applicability” if it can be made or used in any kind of industry, including agriculture.

In Germany, for example, discoveries as well as scientific theories and mathematical methods, aesthetic creations of form, the human body in the individual phases of its formation and development, including germ cells, as well as the mere discovery of one of its components, including the sequence or partial sequence of a gene, cannot be protected by a German patent. Patent protection in Germany is therefore excluded for this areas.

A registered German patent is registered solely in the territory of the Federal Republic of Germany. If a patent shall be protected in other countries besides Germany (e.g. in Austria or Switzerland), protection must be claimed separately. Alternatively, protection in Germany and other European countries can be achieved via a European patent (EP patent).

If you do not have your technical idea or invention patented or protected by a patent or utility model, it can basically be imitated, copied and adopted by third parties without being able to do anything against it. A registered patent defines the scope of protection of the patent, creates a monopoly right and enables action to be taken against imitators. For example, third parties are prohibited from manufacturing the patented product in Germany, offering it, placing it on the market or importing or possessing it for the aforementioned purposes without the consent of the patent holder. In addition, a registered patent can be highlighted in advertising, e.g. with a reference to a “patented product” or “patent protection in Germany”. Furthermore, licenses can be granted to a protected patent or a sale of “the idea” is possible.

In general, it is advisable to not wait too long before filing a patent application if the invention is completed, as third parties may file first. However, in any case, patent protection should be applied for before publishing or presenting the idea to third parties.

There are various differences between a patent and a utility model in Germany. Whereas a patent application is examined by the German Patent and Trademark Office, there is no examination procedure for a utility model. It is thus an unexamined intellectual property right. Another important difference is the significantly shorter maximum term of protection of a utility model of only ten years. In contrast, the maximum term of protection for a patent is 20 years. Unlike in patent law, utility models have a grace period of six months, whereas any prior publication is detrimental to novelty in the case of a patent application.

Unfortunately, the question of whether a German patent or a German utility model is better cannot be answered in a generalized way, since both industrial property rights have advantages and disadvantages. Although a utility model application leads to lower official fees (e.g. for renewal), it is often taken less seriously than a patent as an unexamined intellectual property right. However, relatively quick protection is possible via a utility model, since it often only takes a few weeks from application to registration. In contrast, the examination procedure for a patent application often takes several years. Ultimately, it depends on the individual circumstances for which protective right one choses. Often, a double protection by patent and utility model is applied for in order to benefit from the advantages of both IP rights.

The costs of patent registration in Germany depend on the scope of services required. These consist of the official fees of the German Patent and Trademark Office (GPTO / DPMA) (as well as our fee if we are allowed to assist you). The official fee for filing a patent in Germany is only a 40 Euro. In addition, there may be costs for the search or examination procedure.

Overview of official fees for a patent application in Germany:

Theoretically, you can prepare and apply for a patent in Germany yourself, but this is generally not advisable – especially if you do not have extensive experience in this area and the corresponding expertise.

On its website, the German Patent and Trademark Office (GPTO) conveys the impression that all you have to do to apply for a patent in Germany is to fill out a few forms and you will receive a patent, but this is very abbreviated and kind of misleading. For a (good) patent application, the most important thing is the exact wording of the patent claims. Basically, it is no great deal to get a particularly narrowly formulated patent granted. However, this is often worth nothing, since a corresponding patent may give only very limited protection against imitators.

Sometimes, applicants who have filed a patent application themselves and then received a notice of objection from the patent office contact our office. If we are then commissioned to save what can be saved, the result is unfortunately often worse (and sometimes more expensive) than if it had been done by a specialist, since one is limited to the scope of the first application.

Against this background, it is predominantly advisable either to have the application done by a specialist or don’t do it at all.

When filing a patent application, the details matter. Applications filed by “laymen” often aim for a too narrow or too broad scope of protection and often do not protect what is actually intended to be protected. In addition, there are various “standard errors” that can lead to objections and ultimately to rejections by the German Patent and Trademark Office (GPTO).

The scope of protection of a patent (e.g. the claims) can only be limited after the patent application or even the granting, but not extended. Here, one is limited to the scope of the originally filed application documents.

In course of the examination of a patent – after filing the request for examination and payment of the examination fee – a patent examiner usually searches quite extensively for possibly conflicting prior art. However, the focus is on whether the invention meets the criteria of “novelty” and “inventive step”.

Even if a patent has been registered, it unfortunately does not mean that the product based on it does not infringe any third-party patents or utility models.

Procedure of a patent application in Germany (with our assistance):

➔ Order & payment ➔ Draft (optionally: prior search if necessary) ➔ Filing of the application and forwarding of the official fees after your approval

• ➔ if search request has been filed ➔ search for prior art by German Patent and Trademark Office (GPTO)
• ➔ if request for examination has been filed (at the latest 7 years after filing date) ➔ search for prior art and examination by German Patent and Trademark Office (GPTO)

           ➔ if novelty and inventive step compared to prior art are given (and formal requirements are met): grant of patent and issuance of certificate

            ➔ if novelty and inventive step compared to prior art are not considered to be given: Issuance of an examination communication with setting of a time limit by the GPTO in order to remedy objections by means of comments and, if necessary, amended claims ➔ if successful, then grant of the patent, if not, further examination communication or hearing (in the case of a rejection decision, there is the possibility to take action against it)

After the patent has been granted, you may advertise the protected invention, e.g. with a notice such as “patent protection in Germany”, “patent protected”, “patented in Germany” or similar, as long as the patent is in force.

A patent at the German Patent and Trademark Office can be renewed – upon payment of the renewal fees – up to the maximum protection period of 20 years.

Unlike a German trademark, a patent does not have to be used in Germany. Therefore, non-use is not a reason for revocation of the patent. There is no obligation to use a patent and no grace period for use.