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Patents protect technical inventions which are new, involve an inventive step and are susceptible of industrial application.

Novelty

An invention shall be deemed to be new if it does not form part of the state of the art. This comprises all knowledge made available to the public before the date governing the filing or priority date of the application by means of a written or oral description, by use or in any other way  (Sec. 3 para 1 German Patents Act). The content of patent applications having an earlier filing or priority date referred to in Sec. 3 para 2 of the Patents Act, which were made available to the public on or after the date governing the filing or priority date of the later application shall also be deemed to be comprised in the state of the art. A description, use or other disclosure of the invention shall not be taken into consideration if it occurred no earlier than six months before the filing of the application and if it was due to, or in consequence of  an evident abuse in relation to the applicant or his legal predecessor or a display of the invention at an official, or officially recognized, international exhibition published in the Federal Law Gazette (Section 3 (5) of the Patents Act). Applicants are advised to carefully check the state of the art before applying for a patent. We support the applicant in carrying out and evaluating searches.

Inventive step

An invention shall be deemed to involve an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art (Sec 4 para 1 Patents Act) and thus exceeds the skill of the average expert (invention level).

Industrial application

An invention shall be deemed to be susceptible of industrial application if it can be made or used in any kind of industry, including agriculture (Sec. 5 para 1 Patents Act).

Unity of the invention

The application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (Sec. 34 para 5 Patents Act). The requirement of the unity of invention is met if there is a technical relationship between the inventions manifested by one or more of the same or corresponding special technical features.

A trademark is a sign that distinguishes the goods and services of one company from the goods and services of another company. In this respect, words, letters, numbers and device elements, acoustic signs, three-dimensional forms and other aspects of their presentations, including colours or colour combinations, can be protected if they meet the provisions of the trademark law.

 Why filing a trademark?

By registering the trademark, the owner acquires the sole right (exclusive right) to use this trademark for the respective protected goods and / or services. Trademarks can be sold and divested by the trademark owner at any time.

How can trademark protection be obtained?

Trademark protection results from the registration of a sign as trademark in the official register of the German Patent and Trademark Office. Once it is registered, rights from a trademark can be invoked as of the application date. Trademark protection may also arise from the mere use of a sign in the course of trade business traffic, but only under very specific conditions. In particular, the sign must have acquired secondary meaning as a trademark within the relevant public, and the conditions to met are very high.

Shall a trademark search be conducted before filing a trademark?

 Absolutely!  Before filing a trademark application, an identity or similarity search should be carried out. The German Patent and Trademark Office only checks the formalities, e.g. whether absolute grounds for refusal exist or not. However, it is not examined ex officio whether an earlier identical or similar trademark exists. In order to be on the safe side and to avoid a trademark conflict, it is thus highly recommended conducting a search.

Fabric pattern, coffee pot or brick: they can all be protected as designs. It is the two-dimensional or three-dimensional appearance of a whole product or a part thereof, resulting in particular from the characteristics of the lines, contours, colors of the shape, surface structure or the materials of the product itself or its decoration. A “product” means any industrial or handicraft item, including packaging, get-up, graphic symbols or typographic characters, as well as individual parts that can be assembled into a complex product. A computer program is not considered as product.

In short, a design in the legal sense is the outer appearance in shape and color of two-dimensional surfaces or three-dimensional objects.

The appearance of an industrial object may be protected as an industrial design or model if it is new and has individual character.

Novelty

The design must be new at the date of filing. No design that is identical or differing only in immaterial details must have been disclosed to the public, used in trade, exhibited or otherwise made available to the public before the date of filing or the priority date. It does not constitute a disclosure/publication if disclosure/publication could not have become known to the circles specialized in the sector concerned, operating within Europe.

An exception to this basic principle is the “grace period for novelty”. The grace period for novelty gives the designer a period of up to twelve months (preceding the date of filing or the priority date, as the case may be) for the publication of the design to assess the market success. That means: if the designer itself has published the design before filing the application, this is not detrimental to novelty, provided the period between publication and the filing of the application is not more than twelve months.

Individual character

Another requirement for a valid design protection is the individual character: its overall impression must differ from that of known designs. In this context, the overall impression produced by the design on what is called an “informed user” that is relevant.

As a rule, a particular designing quality level is not required. However, the degree of freedom of the designer in developing the design is taken into consideration. The freedom of the designer in developing a design may be restricted, for example, where a large number of similar designs already exist in the respective category. If the freedom of the designer in developing the design is restricted, the requirements for the distinctive level may be correspondingly lower. In this field, designs can have individual character even if they differ only slightly from existing designs.

However, there is no in-depth examination by the German Trademark and Patent Office regarding novelty and individual character at the time of registration. These requirements are only examined retrospectively in the course of nullity or infringement proceedings. To avoid such procedures, a prior check is highly recommended.