A patent is an intellectual property right granted by a patent office for an invention in a technical field.
An invention is a technical teaching which provides specific instructions, has a practical application, can be repeatedly realised, and constitutes a technical solution to a technical problem by way of technical considerations. The invention may be an innovative product, such as a device or a substance, or a new method of working or manufacture. Following an examination procedure, in which formal and substantive aspects are examined by the patent office, the owner of a patent enjoys, from the day it is granted, a monopoly on the exclusive commercial exploitation of the invention protected by the patent for a limited period. A patent has a maximum term of 20 years (from the date of filing). A utility model, as an alternative or supplementary IP right to a patent, has a shorter term (of up to a maximum of 10 years from the date of filing), and can only be filed for products, not methods. A utility model is also only examined by the patent office with respect to formal matters.
In the examination procedure prior to a patent being granted, the filed subject-matter is examined to ensure it satisfies various requirements, including novelty, inventive step, industrial applicability, technical reproducibility and clarity. In the case of utility models, however, the patent office does not check whether substantive requirements such as the novelty and inventive step of the claimed subject-matter are satisfied. A utility model is therefore a registration right which, once filed at the patent office, gives the owner of the utility model an enforceable legal position within a short period of time. Whether or not the utility model satisfies the substantive legal requirements is examined for the first time during infringement proceedings. It may therefore be less likely that a patent, which has been examined as to substantive requirements, will be found to be legally invalid than a utility model, which has only been examined with respect to formal requirements.
The area of validity of a patent or utility model is subject to territorial restrictions, depending on the granting authority. Third parties are prohibited from manufacturing or selling a patented invention within the area of validity of the patent or utility model without the consent of the proprietor. It is also prohibited for third parties to offer, exhibit, or use an invention protected by a patent or utility model for commercial purposes, as well as for them to possess or import such an invention.
Drafting patent and utility model applications in a detailed and forward-looking manner, in particular when considering the wording of the claims of the application, is key for a successful granting procedure and for the future legal enforceability of the patent or utility model against third parties.
Dr. Stephan Barth| Partner and Patent Attorney
Oliver Hassa| Partner and Patent Attorney
Ralf Peckmann | Partner and Patent Attorney