The application for grant of patent has to be filed with the Patent Office (Section 35 para 1 Patent Act). The application must contain the request for grant of the patent, one or more patent claims, a description of the invention and any related drawings. It has to be noted that a patent application is limited to a single invention and that for each invention a separate application is required.
The patent application must disclose the invention in a manner sufficiently clear and complete that it may be carried out by a person skilled in the art. After filing of the patent application the Patent Office undertakes a first examination to determine any obvious deficiencies. If the applicant does not remedy the deficiencies objected, the application will be rejected. After filing, the applicant may apply for a search for the publications which are to be considered in connection with the determination of patentability of the invention, to find out whether the application has a chance of a grant.
Upon request of an applicant (or a third party) the Patent Office will start to examine the application to evaluate whether the requirements for patentability are met. Examination will center on substantive points such as deficient disclosure, clarity of claims, novelty and inventiveness. The request for examination may be postponed for seven years after filing of the application. If no request is filed within this period, the application is deemed withdrawn. The patent application will be published in its original form 18 months after the day of filing or the priority date, whichever is earlier (Section 31 para 2 No. 2 Patent Act). Thereafter, third parties have a right to inspect the records. Especially third parties who work in the same field of technology thereby receive an early warning about competitive patent applications.
If the Patent Office determines that the application complies with the requirements of patentability, the patent will be granted. The grant of the patent will be published in the Patent Journal.
2. Opposition and Cancellation
Within three months of publication of a patent grant (nine months for a European patent), any person may give notice to the Patent Office of opposition to the patent. Within the opposition procedure, the invention will be re-examined by the examining division of the Patent Office. The decision to revoke the patent takes effect retroactively. If an opposition is considered unfounded, the patent is maintained. It is also possible that a patent is maintained in a restricted scope.
If a person missed the opposition deadline, or even if its position was rejected it may still initiate nullity proceedings with the Federal Patent Court. The grounds for cancellation of a patent are stated in Section 21 Patent Act and are lack of patentability, insufficient disclosure, ie legal obtaining, unlawful usurpation or extension of the subject matter. The Federal Patent Court decisions are rendered by the judicial bodies (senates), composed of five judges and are published in the Patent Journal.
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.
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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