Patents

At the same time, obtaining patent protection can safeguard the technology developed by your company, preventing competitors from entering a new technological field. Several competitors can also enter into cross-licensing agreements, thereby gaining access to shared technologies. 

Patents are also highly relevant when it comes to valuing your company. A single patent or a portfolio of patents creates an asset on your company’s balance sheet. Patents are also important to investors because they define the technological framework over which a company — and thus, indirectly, the investors — has exclusive control. 

As well as providing protection against imitators, a patent can be used for your company’s marketing purposes. Products protected by a patent can be advertised more effectively, as many consumers associate quality and innovation with patented products. Consumers know that a patented product is usually offered exclusively by one company. Consequently, many product packages bear the words “patented” or “patent pending”. 

The subject matter to be protected by the patent must be novel. This means that it must not have been publicly described, either orally or in writing, before the filing date. For example, if an idea has already been published in the USA or China, it is not considered new in Germany. 

The subject matter to be protected by the patent must be based on an inventive step. It must not be obvious to a person skilled in the art. In other words, it must offer a unique ‘twist’ to those familiar with the technical field. 

The subject matter must be industrially applicable. In practice, however, this requirement is the easiest to meet and is intended to prevent ‘commercially meaningless’ patents from being granted. 

A patent is a legal monopoly granted by the state to the proprietor for a limited period of time. As the patent proprietor, it enables you to protect your invention and take action against infringers.

Any natural or legal person can apply for a patent. If a company applies for a patent, the inventors involved in the application must be named. 

You can apply for a patent for a technical device, process or specific use via a German patent application, a European patent application or an international patent application. This enables protection of your idea in the relevant territory. 

The German Patent and Trade Mark Office (DPMA) is responsible for German patent applications. European patent applications can be filed with the European Patent Office (EPO), while international patent applications are handled by the World Intellectual Property Organization (WIPO). 

It is strongly discouraged to publish an invention before applying for a patent. In most countries, an invention cannot be patented once it has been published. Publication (even self-publication) creates prior art that may conflict with the applied-for patent. Therefore, the ‘golden rule’ for protecting inventions is: 

First apply, then publish! 

The examination and grant procedures at individual patent offices can vary greatly from case to case. The duration of the grant largely depends on the outcome of the official examination and whether relevant prior art is found that calls into question the patentability of the invention. On average, a ‘normal’ examination procedure takes around three to five years. 

Your patent is valid for a maximum period of 20 years from the filing date. During this time, you must pay the renewal fees on time in order to maintain the patent. 

As the patent proprietor, the patent gives you the exclusive right to use your patented invention in the relevant territory (e.g. Germany or Europe). This right particularly applies to the manufacture, commercial utilisation, offering for sale and import of a protected invention. You also have the right to grant licences for your invention, enabling other companies to use your patent in exchange for a licence fee. 

For instance, patents are not granted for objects that would be contrary to “ordre public” or morality, nor for processes that modify the genetic identity of humans or animals. The boundary between what is and isn’t patentable is often very narrow and, in some cases, the subject of legal disputes. A patent application has, for instance, been filed for the CRISPR-Cas9 gene scissors method, which can be used to cut out DNA building blocks. The gene scissors cut the DNA but do not alter its identity in a manner that would prevent it from being patented. Samuel Colt was also granted a patent for a revolver design back in 1836. Here, the focus is on the revolving cylinder mechanism rather than on a weapon that would be contrary to “ordre public”. 

Many patentable inventions do indeed include software. However, it is important to note that pure source code is not patentable in itself, but rather when combined with technical means. For instance, software that controls the interaction of sensors and actuators can in principle be patented. 

Using artificial intelligence (AI) in a specific technical field can constitute a patentable invention. It is important to note that it is not the pure algorithm that reproduces the AI that can be protected; there must always be a specific technical reference. For instance, an invention may describe how AI can be used to recognise anomalies in cells or heartbeats, or to classify audio codecs. 

Filing a patent application incurs official fees, which vary depending on the office. For example, fees for the German Patent and Trade Mark Office (DPMA) or the European Patent Office (EPO) differ. For example, when filing an application with the DPMA, an application fee and an examination fee are incurred, currently amounting to a sum in the mid three-digit range. Furthermore, renewal fees are due to maintain the application or granted patent. These are due for the third and each subsequent patent year, calculated from the filing date of the application. This means that no renewal fees are due in the first two years after the filing date. Additionally, the annual fees are comparatively low, at a double-digit amount, for the third and fourth years, but increase thereafter. Additionally, if the patent application is drafted, filed and supervised by a patent attorney during the examination procedure, further costs are incurred. 

There are various differences between patents and (German) utility models. The most notable difference is the length of the protection period: 20 years for a patent and 10 years for a utility model. Additionally, a patent is only granted after substantive examination for novelty and inventive step, whereas a utility model is registered without such a substantive examination. Furthermore, methods cannot be protected with a utility model in Germany. 

Applicants resident, having a principal place of business or a branch office in Germany are generally not required to appoint a patent attorney or attorney at law to file the patent application in Germany. However, it is generally advisable to seek the support of a patent attorney, particularly when it comes to developing a successful and sustainable patent strategy and navigating the rather complex examination proceedings. We would be happy to answer any specific questions you may have about your patent application or to provide comprehensive advice on all your patent protection needs.