German Patent law provides for a term of protection of 20 years from the date of application, provided that the patentee pays yearly maintenance fees. The exclusive rights deriving from a patent can generally only be claimed by the patentee after the patent has been granted. The patent grant gives the patentee the basic right to exclusively use the invention within the territory of Germany (Section 9 Patent Act).

This includes the right to prohibit others from using the patent invention. Briefly speaking, third parties are therefore refrained from manufacturing, offering or distributing products which are subject matter of the patent, to use the patented product or to offer or distribute products which are obtained directly by methods subject to the patent (the exact rights are defined in Section 9 sentence 2 Patent Act). This also covers acts of importing of products for the purposes mentioned above.

Third parties are also prohibited to make an indirect use of the patent (contributionary infringement - Section 10 Patent Act). Section 11 Patent Act describes a number of acts of third parties which do not constitute a prohibited use of the patented invention. This limitation of the effects of a patent relates to acts done privately or for experimental purposes or in preparation of a medicine. In addition, a patent has no effect against the person who has used the invention bona fide prior to application (if this use does not already destroy novelty).

The rights of a patentee with respect to a special product are, however, only given until they are exhausted. Exhaustion of a patentee's rights requires that the invention is put on the market with the consent of the patentee (or of any authorized person eg licensee). Due to EEC-legislation on the free movement of goods (Art. 30 EC Treaty) - as interpreted by the European Court of Justice - exhaustion is not limited to marketing acts done within the territory of Germany. Exhaustion of all patent rights as to the product will automatically occur if a patented product is put on the market with the consent of the patentee in any member state of the EU.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.