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Patents and utility models |
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The most widely known form of protective right for technological innovation
is the patent. Patent rights are awarded to an inventor in exchange for
the public disclosure of the details of the invention. The underlying
principle is that the current state of knowledge in the particular field
will be enriched by this contribution and will advance.
1. National Patent
Almost all industrialised countries award patents for subject matter which
is technical, which is novel with regard to the state of the art, which
represents an inventive step and which is susceptible of industrial application.
The requirements to be fulfilled before such protective rights can be
conferred are laid down by national laws and, accordingly, are dealt with
differently in each individual country. German patents granted by the
German Patent and Trade Mark Office and effective within the Federal Republic
of Germany enjoy a very high reputation throughout the world owing to
the high standards applied in the patentability examination to which applications
are subjected.
2. European Patent
In addition to national patents there are also patents which have regional
validity, and one of these is the European patent that is granted by the
European Patent Office. The European Patent Office, a supranational authority
based on an agreement between, currently, 27 statesı that are signatories
to the European Patent Convention (EPC), has its main office in Munich,
and uses German, English and French as its official languages. Following
a single, centralised European examination procedure of a high standard
recognised worldwide and similar to that of the German Patent and Trade
Mark Office, a European patents is granted for one, several or all the
EPC contracting states that the applicant wishes to designate and is subsequently
validated in those states. This validation generally requires a translation
of the European patent, granted in one of the European Patent Office's
official languages, into the language of the designated contracting state.
Once validation has taken place, the European patent acquires the same
legal effects in the contracting state as a national patent granted by
its own industrial property authorities.
One of the advantages of the European patent resides in the single, centralised
examination procedure before the European Patent Office which obviates
the need to undergo separate procedures before five, ten or even twenty-seven
national patent authorities. It is a further advantage that the costs
involved in the translation of the European patent into the official languages
of the designated contracting states, which often makes up a quite considerable
part of the overall costs, are not actually incurred until after the European
patent has been granted.
1) status as of July 1, 2003: Austria, Belgium,
Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, the
Netherlands, Portugal, Romania, Sweden, Switzerland, Slovakia, Slovenia,
Spain, Turkey, and United Kingdom.
3. Community patent
Although all the states of the European Union (EU) are members of the
EPC, the European patent is not the same as a Community Patent. A Community
Patent is one that, upon grant, would acquire legal validity in all the
territories of the EU and would be governed by the legislation enacted
by the European Commission; however, despite years of protracted negotiations,
the Community Patent has not yet come into existence. One of the main
reasons for this is that the governments of the EU member states have
not yet reached agreement about the language in which a Community Patent
should be granted its legal authenticity. Nevertheless, in view of the
continuous efforts made to achieve harmonisation within the EU, it is
to be expected that the Community Patent will become a reality in the
not-too-distant future.
4. International applications under the PCT
4. International applications under the PCT The international or PCT application
is based on the Patent Cooperation Treaty (PCT) concluded between, currently,
121 states² and offers the advantage that with one centralised application
the same filing date is accorded in all the PCT contracting states. The
procedure to be followed by the PCT application is made up of an international
phase and a national or regional phase. In the international phase a search
is carried out through the state of the art that is relevant for the assessment
of the patentability of an invention and - on request - a preliminary
examination is performed whose results indicate to the applicant the prospects
of the grant of a patent. Upon completion of the international phase,
the applicant has the option to enter into the national or regional phase
in designated PCT contracting states in which the application is then
subjected to an examination procedure in accordance with the national
provisions.
²) as of July 1, 2003
5. Utility Model
A utility model is a form of protection right for technical items and
has been referred to as a "petty patent". Unlike patent protection, which
is offered in most states, utility model protection rights are only available
in a few countries. However, even between these countries, the requirements
to be fulfilled by utility models are different and, accordingly, it is
difficult to provide a clear, general distinction between patents and
utility models.
IIn Germany a utility model is distinct from a patent, above all, in that
an application for a utility model is not initially subject to a substantive
examination. After a relatively short time, a few months as a rule, the
utility model is simply registered. Examination is subsequently undertaken
only in the event of a conflict. The German utility model has proved to
be a very useful instrument as a precautionary accompaniment to a patent
application or a patent to provide comprehensive protection for an invention.
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Patents and utility models