GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
1. Intellectual Property Rights and Granting Procedure 1.1 Types of Intellectual Property Rights Apart from non-technical IP rights, such as copyrights, trade marks and designs, national patents and national utility models are avail- able in Germany. At the European Patent Office (EPO), European patents and European patents with unitary effect (“unitary patents”) are avail- able, which are granted with effect for Germany. These technical IP rights are based on statutory law. 1.2 Grant Procedure All technical IP rights require that an applica- tion be filed with the respective patent office. German patents and European patents (with or without unitary effect) require that the applica- tion undergoes search proceedings and, upon request, examination proceedings at the patent office before the right is granted by the respec- tive patent office. During the search proceed- ings, prior art is searched by the patent office. During examination proceedings, the patent claims will be assessed to determine whether they fulfil all statutory requirements for patent- ability. Utility models are registered without sub- stantive examination. 1.3 Timeline for Grant Procedure The average time for the patent to be granted is about two-and-a-half years from the request of examination. Utility models are registered within a few weeks after filing. 1.4 Term of Each Intellectual Property Right German and European patents have a term of 20 years from the filing date. For utility models, the term is ten years from the filing date.
1.5 Rights and Obligations of Owners of Intellectual Property Rights The most relevant rights for an owner are the right to an injunction and to damages. The own- er has to pay a regular (annual) renewal fee to maintain the right in force. Via the public patent registers at the patent offices, granted patents can be searched for certain fields of technology or for certain companies. 1.6 Further Protection After Lapse of the Maximum Term There are supplementary protection certificates (SPCs) for German and European patents. SPCs compensate patent holders for loss in effective patent term resulting from the time taken to receive marketing authorisation for such prod- ucts. SPCs extend the period of effective pro- tection by five years for patents on human or veterinary medicaments and plant protection products for which an authorisation to be placed on the market is required. First of all, there must be a basic patent that is still in force at the time the SPC application is filed in the member state in which the SPC application is submitted. Fur- thermore, the product must be protected by that basic patent. Also, the SPC must be based on the first valid authorisation to place the product on the market as a medicinal product. Finally, the product must not already be the subject of an SPC. 1.7 Third-Party Rights to Participate in Grant Proceedings In proceedings before the European and German patent offices, following the publication of the patent application, any third party may present observations concerning the patentability of the invention to which the application relates. That person shall not be a party to the proceedings.
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