BUSINESS BRIEF: GERMANY
BUSINESS BRIEF: GERMANY Patents
How do you register or secure patent rights, and is national or international coverage most appropriate?
A patent can be obtained via a German, a European or an International (PCT) patent application. In any case, the application will undergo substantive examination before
Is there anything unusual about the patent law that companies should be aware of? What are the most common mistakes businesses make?
grant. Maximum patent
duration is 20 years from filing subject to annual maintenance fee payment. Utility models (undergoing formalities examination only) provide shorter-term protection (maximum 10 years).
A national patent application is preferable where Germany is the only focus. Otherwise, the other two options
soon become economically more
attractive compared to national filings. Strategic considerations, eg, in view of deviations between German and European examination, may play a role.
What are the costs for registering the patent and what are the costs of defending it?
Te average cost for obtaining a patent is €7,000 via the national route and €10,000 via the European or the PCT route.
Patents can be attacked through opposition
proceedings initiated within a short period aſter grant or, later, at any time through an invalidation suit with the Federal Patent Court. Average costs up to a first instance opposition decision range from €15,000 to €50,000.
In invalidation cases, the losing party has to reimburse the winning party up to a statutory amount (depending on the patent’s commercial value set by the court). Typically, the cost risk of first instance invalidity proceedings ranges from €40,000 to €250,000.
Where can you find information on existing patents in your jurisdiction?
German and the European patent registers are available online. Anyone may request physical file inspection.
A civil court handling a litigation case cannot decide on the validity of the patent. Hence, the defendant has to file an invalidation suit before the Federal Patent Court. Te civil court may stay the proceedings up to the invalidation suit’s decision. Proper strategic timing of actions is essential here.
What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent?
While German civil patent litigation courts provide fast, foreseeable and typically patentee-friendly decisions at comparatively low costs, the key threat is invalidation of the patent which is possible, eg, on the basis of new prior art, at any time.
Patent enforcement strategy depends on the specific case. Enforcement tools range from sending warning letters or cease and desist letters to requesting customs action or preliminary injunctions or filing litigation suits of various scope.
Have there been any changes to the patent law(s) in the last 12 months?
Tere have not been any changes to the national patent law in the last 12 months.
Trademarks
How do you register or secure trademark rights, and what protection does it grant? National trademarks can be registered at the German Patent and Trade Mark Office (DPMA), initially for 10 years. Any mark used to distinguish goods/ services in trade and capable of being represented graphically is registrable. Identity or similarity with older marks is only examined upon opposition.
Symbols that are used in trade in Germany and become well-known as a distinctive mark of a particular enterprise are protected without registration.
118 World Intellectual Property Review Annual 2013
Besides national registration, trademark rights in Germany can be secured by applying for a European Community trademark (CTM) with the Office for Harmonization in the Internal Market (OHIM) or an international trademark with the World Intellectual Property Organisation (WIPO).
A trademark gives the owner the exclusive right to use the mark and to prevent others from using a sign similar or identical to it for the same or similar goods or services. Te owner can also prevent the registration of third parties.
What are the costs for registering a trademark, and what are the costs of defending it?
Te official application fee for a national trademark including three classes amounts to €300 (€100 extra per an additional class; €200 extra for an accelerated examination). A European CTM application costs €900 (for three classes). For defending a trademark, in most cases the enlistment of a professional representative is inevitable. Te costs are based upon the expenditure of time and vary from case to case. Office and court fees also vary.
What are the key threats to trademark owners, and what is the best strategy for dealing with infringement?
Te key threat to trademark owners is the unauthorised use of the trademark, and online infringements especially are increasing. Usually the first action against an infringer is a cease and desist letter in which further measures, especially court proceedings, are reserved.
What are the most common mistakes trademark owners make?
A common mistake is not to use the trademark as registered. A registered mark must be genuinely used in Germany for the goods and services registered within five years from the registration to avoid cancellation. A trademark owner also needs to protect the mark and act against potential infringers to maintain the full value of the trademark.
www.worldipreview.com
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