Things to Remember when Applying for a Patent in Germany

August 22, 2022

Patent is an exclusive right provided to an inventor or assignee for an invention which is new, unique, not obvious and has some industrial applicability. Jurisdiction plays an important role in intellectual property especially patents which provides territorial rights to an inventor or assignee which states that legal rights are applicable only in jurisdiction(s) where a patent is being filed. Thus, patent owner may always want to obtain legal protection and secure invention rights in various jurisdictions.

Germany is a booming innovation hub in Europe with growing patent activity and is considered as one of the top-ranked Country with most innovations worldwide. Both the European Patent Convention (EPC) and the Patent Cooperation Treaty (PCT) includes Germany as a member and Applicants can designate Germany in an EPC or PCT application.

In Germany, types of patents are as follows:

Patents in Germany in accordance with the German Patent Act (GPA) and
Patents in Germany in accordance with the European Patent Convention (EPC).

Utility model protection and supplemental protection certificates (SPC) are additional forms of protection provided by German law.

Each country has its own laws that needs to be followed while filing a patent. Similarly, Germany also follows certain rules and undergo formal and substantive examinations before a patent is granted. A patent application in Germany is filed in German Patent and Trademark Office along with applicable fees.

A patent owner when applying for a patent in Germany must follow some important things, which are as follows:

Is my Patent Eligible?

Likewise, all other nations and jurisdictions an invention is eligible for filing a patent only if it is novel, unique, non-obvious and have some industrial applicability. Although inventions in all fields of technology are eligible for national patents but in Germany, inventions related to the human body, procedures for cloning and altering human genetic, plant and animal varieties; a scientific theory; a mathematical method; a scheme, rule, or technique for performing mental acts, playing games, or business methods are not considered as technical inventions. Hence, they cannot be protected by a patent. Also, inventions related to computer applications or information presentation methods (generally all GUI) are challenging to protect and require specific wording.

Is German Translation of Application Required?

A certified German translation of the priority application is required to file a patent in Germany. If application was initially filed in English, German patent office offers a 15-month grace period from the earliest priority date to deliver the complete German translation, including all supporting documentation whereas if initial application is filed in any other language, certified translation should be provided in a maximum gap of three months from filing date.

How to File a Patent?

Various methods need to be followed while filing a patent in Germany. Some of them are as follows:

Filing international patent application under Patent Cooperation Treaty (PCT) by which inventor gains benefit of 30 or 31 months to enter national phase filing in Germany.
Filing regional application with the European Patent Office (EPO) as Germany is member state of EPO.
Filing under Paris Convention, where assignee can file initially in United States followed by claiming priority from US and filing in Germany.

Also, applicants who are not German residents need to arrange authorized German lawyer or patent attorney for filing a patent application.

Request for Examination

After filing a patent, an applicant or inventor must submit request for examination within seven years from the filing date and pay the applicable examination fee to start the examination process.

After payment of applicable fees, the patent application undergoes formal and substantive examinations, where the applicant gives arguments and is allowed to amend claims subject to disclosed description and if patent application meets eligibility criteria and no prior art is found by examiner, it is granted.

Grant, Validity Term and Maintenance Fees

A patent application after final amendment is granted and published on payment of applicable fees and is validity term of 20 years from date of filing. Also, maintenance fees must be paid each year starting from 3rd year onwards within stipulated time to avoid any surcharge.

Thus, above points must be considered before filing a patent in Germany and we at TT Consultants have services including Patent Drafting & Illustrations where we develop in-depth understanding of the technical field of the invention and prepare provisional & non-provisional applications. We also help clients in preparing Office Action Responses (OAR) and technical instruction letters (with one or more response strategies) for various jurisdictions including Germany.

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