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Patents and Utility Models In order to obtain definitive protection for technical property in the form of a utility model or a patent, the invention needs to fulfill the legally stipulated requirements of novelty, inventive activity or, in case of a utility model, an inventive step and industrial applicability.
An invention is considered to be new if it does not form part of the state of the art. Information on the state of the art can be obtained in the form of a preliminary search, for example, in internet databases or a patent information center, in which the inventor is able to compare in person the pertinent published documents with the respective invention. Depending on the experience with patent searches, it may be advisable in certain instances to commission a specialist to perform the search. Such a search also serves for ensuring that an object is not subject to the protection rights of third parties in order to prevent unnecessary investments. In addition to the published documents, the novelty and therefore the ability to protect the invention may be negatively affected, for example, by articles, lectures, demonstrations, tests or other prior public use. It should also be noted that even the inventor may be responsible for this novelty-depriving state of the art. Although it might be difficult for some inventors or the applicant, it is advisable to keep the invention confidential until the filing date, if possible. In addition to the novelty requirement, the invention needs to show certain inventive merit that distinguishes the invention from the state of the art. One prerequisite for fulfilling this qualitative stipulation is that a person skilled in the respective technical field does not consider the invention to be an obvious conclusion of the state of the art.
Lastly, the invention also needs to be industrially applicable, i.e., it must be possible to manufacture or utilize the invention in an industrial field (including agriculture).
Other common requirements of a utility model and a patent are the payment of an application fee and the completion of an application form that needs to be enclosed with the application text. It is very important that the application text is prepared very carefully because it should disclose the invention in such a comprehensible and explicit fashion that it can be implemented by a person skilled in the art. The application text comprises an abstract, a description of the state of the art and of the invention that should also be illustrated in detail in a drawing, as well as the patent claims or claims. The correct formulation of the claims is particularly important because the scope of protection and therefore the value of the invention are primarily defined by these claims. The cooperation of a patent attorney is recommended in this respect in the order to prevent any vital errors that would enable a competitor to circumvent the protection rights. In most instances, it is sensible to submit an official search request together with the application documents. Once this official search is completed, the applicant receives a search report on the pertinent domestic and foreign publications investigated. This search report also contains a patentability assessment of the invention prepared by German Patent and Trademark Office.
A patent and a utility model impose the same restrictions on third parties. The law states that the patentee has the exclusive right to utilize the invention. Therefore, it is illegal for commercially active third parties to manufacture, advertise, bring to market, use or import into the territory of validity or own for the aforementioned purposes the product without the permission of the patentee. Although processes (manufacturing processes, methods of operation, application methods) can only be protected by a patent, it is illegal for unauthorized individuals to utilize or advertise the respective process within the territory of validity. It is also illegal to offer for sale, bring to market, use or import or own for the aforementioned purposes products that were manufactured with the aid of a protected method.
In contrast to a patent, the validity period of which is twenty years and begins with the filing date, the term of protection of a utility model is limited to ten years.
Another difference can be seen in the procedures to be endured until the applicant is granted protection. The aforementioned prerequisites for protection are verified and need to be fulfilled in a patent granting process, the introductory examination request of which needs to be submitted no later than seven years after the patent application. However, an invention to be protected by a utility model is not subjected to such an extensive patentability assessment before it is registered. This is the reason why a utility model is also registered if one or more of the aforementioned prerequisites for protection are not fulfilled. However, the utility model is not granted protection rights in this case, but rather merely a pseudo protection that can never form the basis of any derivative rights. The uncertainty with respect to the ability to protect a utility model can be minimized with a voluntary search carried out at the request of the German Patent and Trademark Office and the subsequent examination of the identified state of the art by the applicant. Since such a utility model is merely examined with respect to formalities (e.g., sufficiency of the documentation), it is disadvantageous that a “review of continued legal protection” is frequently conducted in court after a competitor files a complaint. The utility model is also referred to as the “little brother of the patent.” This explains why the licensing fees for a patent are frequently twice as high as those for a utility model. However, the lack of official examination proceedings not only entails disadvantages. One positive aspect is the saving of time because the period between the filing date and the registration of the utility model is only three to six months.
Another common aspect of a utility model and a patent is that they are both subject to fees. In Germany, the official fees to be paid to the German Patent and Trademark Office for a utility model, however, are only about € 500 less than those for a patent. The maintenance of a patent requires the payment of annual fees that begin with the 3. year and increase every year. The maintenance fees for a utility model need to be paid for the 4. through 6. year of protection, the 7. and 8. year of protection and the 9. and 10. year of protection. The official fees need to be paid in a timely fashion because the application is otherwise considered to have been retracted.
In addition to deciding on the type of protection right, another important decision is the selection of the countries in which the invention should be protected. This difficult decision is dependent, among other things, on the market situation and the respective competitors. However, the applicant is not required to make this decision at the time the application is filed because German law stipulates that the inventor be granted priority rights. In other words, if the applicant submits a patent or utility model application in Germany and wants to protect the same invention in another country within a period of twelve months, the foreign application is assigned the same filing date as the application filed in Germany. In addition to filing a direct national application at a foreign patent office, the applicant may also request protection for a regional patent (e.g., a European patent). If applications should be filed in several foreign countries, the Patent Corporation Treaty enables the applicant to file an international (PCT application) for the participating contracting states. This provides the applicant with additional time before ultimately reaching a decision on the contracting states, in which the application should be pursued.
In the commercialization of a product, protection rights can be used as an effective advertising means and thusly promote sales.
Seven good reasons why an applicant should apply for protection rights are summarized below
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