1 June 2014Jurisdiction reports

Business brief 2014: Germany

Patents

How do you register or secure patent rights, and is national or international coverage most appropriate?

A patent can be obtained via a German, a European or an international (Patent Cooperation Treaty) patent application. In any of these cases, the application will undergo substantive examination before grant. The maximum patent duration is 20 years from filing, subject to an annual maintenance fee payment. Utility models, which undergo formality examinations only, provide shorter-term protection of up to ten years.

A national patent application is preferable where Germany is the focus. Otherwise, the other two options become more attractive compared to national filings. Strategic considerations, for example differences between German and European processes, may also play a role.

Where can you find information on existing patents in your jurisdiction?

German and European patent registers are available online. Anyone may request physical file inspection.

Is there anything unusual about patent law that companies should be aware of, and what are the most common mistakes businesses make?

A civil court handling a litigation case cannot decide on the validity of the patent, so the defendant has to file an invalidation suit before the Federal Patent Court. The civil court may stay the proceedings up to the invalidation suit’s decision. Proper strategic timing of actions is essential.

What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent?

While German civil patent litigation courts provide fast, foreseeable and typically patentee-friendly decisions, the key threat is invalidation of the patent which is possible, for example on the basis of new prior art, at any time.

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