The German patent law simply describes patents as 'new inventions susceptible of industrial application'. Specific definitions or explanations have been dealt with by courts and case law.
In Germany patent a right is obtained through registration at the German Patent Office (Deutsches Patentamt/DPA) and it belongs exclusively to the inventor. The grant of a patent right is based on a 'first to file' principle. Those technical inventions which meet the prerequisites of novelty, inventive step and industrial application will be registered as patents after formal and substantial examination by DPA. Discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, computer programs, presentations of information, plant or animal varieties and methods for surgical or therapeutical treatment of human or animal bodies are not patentable.
18 months after filing the application document will be published. Then the DPA can examine the invention upon the applicant's request, which must be filed within 7 years after the filing date. If the DPA approves granting of the patent, it shall issue a document called Patentschrift and arrange for its publication. The patent may be opposed within a period of three months after the publication date. The validity of a patent lasts for 20 years starting from the application date. An annual fee paid to the DPA is a necessity to keep the patent valid. The patent owner has the right to prohibit any other party from producing, marketing or using a product which is the subject matter of the patent or from importing and storing the product for the above purpose. The patent owner can license or assign the right of the patent to other parties.
The decision of the DPA can be appealed to the Federal Patent Court, whose decisions can be further appealed to the Federal Court of Justice in some cases. Infringement suits, however, must be brought to the Civil Court wheras the invalidation suit (to invalidate a granted patent) has to be filed with the Federal Patent Court which marks a very strict distinction.
The relationship between employers and their employees is regulated by the Act on Employee's Inventions (Arbeitnehmererfindungsgesetz). According to this act, in case of a patent or a utility model, if the invention is a 'service' invention (ie, an invention made the mark entrusted or using the experience of the employer), the employer is entitled to this invention and may file an application for a patent or a utility model, but must compensate the employee. On the other hand, the employee has the duty to notify his employer of any invention he has made.
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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