Patent

The title of this article is ambiguous. For further meanings see Patent (term clarifying).

Patent is a sovereign given commercial patent right, the one temporally limited prohibition right grants. Entitled against the extensive opinion a patent not automatically to the use of the own Invention. Those can be for example nevertheless forbidden, if it against valid Laws offends. A patent gives however the right to its owner, to forbid other one, to use the own invention without permission, D.h. z.B. to manufacture a protected product, to offer or use or a protected procedure use. That applies however only to commercial application. That Inventor the right does not have to prevent the private use of its invention.

Deckblatt einer Patenterteilungsschrift
First page of a patent distribution writing

Table of contents

History

The origin of the word patent

The origin of the word "patent" that lies in the decrees Kings, those began, their Decrees and Regulations to let lay down in writing. These patents had the form of open letters (is called one could it read, without Seal to break), and became in England "Type character patent"(lat.: litterae of patent = open letters) mentioned and often began with "tons whom this is shown", "tons whom this May belong" or similar cliches (the latters still the decoration of the patenturkunden forms of the USPTO).

Patents were issued of the ruler and addressed themselves to all subjects. Since that 13. Century gave it in England such Documents. A patent could be granted for many purposes z. B. the appointment of officers, Assignment of concessions, Monopoly grant for trade and sales or also the license for land conquering: A patent from the year 1496 permitted John Cabot, "tons sail, ton more conquer, tons own heathen country, and ton exclude others from so doing ".

In 14. Century was still the commercial activity in England in relation to the continent in the arrears. The English kings began with it, to call stranger of specialists to England and them Charters to give.

First beginnings to the erfindungsschutz are in the boehmischen and Saxonian mountain right. In Venice the yearly 1469 there was a privilege for the introduction of the Printing. List of privileges up: [ 1 ] According to this description the word trunk comes "invents" from "fuendig becomes" from the mining industry.

History of the Patent Acts

The first Patent Act in the today's sense became in Venice in the year 1474[ 2 ] issued, followed of that Statute OF Monopolies[ 3 ] in Great Britain (1623) and France[ 4 ] (1787). To "the OF Monopolies" is considered statute as model to the Patent Acts world-wide.

In 16. Century by German princes patents in larger style were lent. Patentrechtliche regulations there were in the German member states only at the beginning 19. Century, altogether 29 Patent Acts with territoraler in each case effect. All these German laws protected the invention thereby, that the given patents up to their expiring were kept secret. Both new inventions and established commercial procedures were patented, from the foreign country were introduced. Some Privileges offered protection approximately Imitation (Monopoly rights), other protection against restrictive guild regulations (and thus against monopolies and on more Competition). One after-says to the latter privileges, that they the release of the industry from all too restricting regulations by guilds and authorities served and thus those industrielle revolution to England promoted. Patents for monopolies, favourites of the yard or backers of the royal cash benefitted, became in England after 1560 very numerously, and the abuses led increasingly to a general discontent.

Sir Francis Bacon, the large scientist, Philosopher, Statesman and contemporary of Shakespeare, became 1621 because of Bribery condemned. Against its own public expressions he gave as Largevictory-Elbe-true and Large chancellor the English crown further arbitrary patent privileges, for their owners of large use, for the society altogether were however intolerable. Among other things the trade was subject also Johannisbeeren, Salt, Iron, Powder, Spielkarten, Calf skins, Canvas, Ox bone, Tranoel, Fabric seams, Potash, Anise, Vinegar, Coal, Steel, Branntwein, Brushes, Pots, Salpeter, Lead, Oil, Glass, Paper, Strength, Tin, Sulfur, dried herrings, the export of Cannons, Beer, Horn, Leather as well as the import more Spanish Wool and Irish Yarn so-called patent monopolies.

This Privilege practice was particularly in England widespread. Already 1601 the English crown the most oppressive had Monopolies on indispensable goods and food waive, 1623 the well-known followed "Statute OF Monopolies", large restriction of the Patentpriviligien meant.

A further crucial break-through for the social acceptance of patents formed the introduction of the principle for that Compulsory license - (however only very rarely used) a possibility of the interference by the state: In completely determined emergency situations, like z. B. in the Second World War in America, inventors were legally forced, to grant all applicants licenses for the use of their invention against an appropriate payment. By this trick not used in practice the way for extensive Patent Acts in many countries became in 18. Century smoothed.

After the establishment of the German Reich in the year 1871 first controversially also a uniform patent protection one discussed. Still in the year 1864 the German Chambers of Commerce demanded the abolishment of the patents, because these "harmful for the general Prosperity"are. On urge of the VDI and the patent protection association (Werner von Siemens) the Patent Act stepped to 1. July 1877 in strength. Only starting from this time given patents were also published. The first patent became to 2. July 1877 under the publication number DE000000000001A [ 5 ] at Joh Zeltner for a "procedure for the production of a rothen Ultramarinfarbe" assign.

The further development to the modern patent law was particularly by those Idea coined/shaped, that an appropriate inventive achievement must go to the award of a monopoly in front. The most important criteria of the patent law are based in the theory on the principle of Achievement and Return.

The exclusion of patenting of discoveries, Is to serve ideas and already well-known inventions above all for it, to secure the use of the patent law for the society. The arbitrary assignment of privileges replaced by one in detail arranged Interest rush equal.

However this principle of achievement and return becomes and/or. altogether positive reconciliation in the newer extensions of the patent law, for example within the range of the genes, denied. Thus it succeeded to the American company Myriad over a hand fully of EPA to patent given patents a row in Europe of already generally applied cancer of the breast tests. Thus, that Myriad in consequence those Execution these actually favorable and already successfully clinically used tests in Europe thereby forbid to let and since that time execution this test could only in the company-owned laboratories into that The USA happens, must those Blood tests into the United States to be sent. Myriad has besides a very high Price for these tests set, those before already many laboratories lower-priced accomplished. The moreover one it succeeded to Myriad by these patenterteilungen, that all future discoveries to the appropriate gene on 20 years under their monopoly stand. One similarly disputed situation, in that that Sense and that Reconciliation one doubts, there is today with that Software patents.

Introduction

Patents become for Inventions given, those again are, on one inventive activity are based and commercially applicably are. The invention is in the patent application so too reveal, that Specialist it to implement can. Becomes in Patent applications usually only described one invention, however become in the patent claims, particularly if a fundamental idea is to be stressed, often stresses all possible implementations and (also only in the future discovered) uses of the idea. An example of it are those Cancer of the breast-Gene patents the company Myriad.

With the patenterteilung an absolute right is lent to the owner at the given patent claims, that means against each third working negative Ausschliesslichkeitsrecht. A positive Use right do not obtain a patent however, since older patents can exist, the one further scope of protection have (example: those was invented Door, in order to finally eliminate the bags before the cave entrance, and it was patented. That becomes later Lock for the door invented, that the bolting device bar replaces. The lock is usable only with the door. Since the door is patented, a door with a lock can be used only with agreement of the owner of the older patent). There can be thus older patent claims, the one further scope of protection have. Naturally there are also legal barriers beyond that z.B. for permission-needy medicament active substances.

A patent becomes for one Running time from up to 20 years gives. Patents for inventions, the z.B. Medicaments concern, can due to the duration that Procedure of admission by 5 years a longer running time have.

In response to the national grant of a temporally limited monopoly the inventor its invention must (thus z.B. a device or a procedure) in one Patent specification reveal (therefore it the name "patent" of lat. patere - "stand openly", "lie openly"), thus make everyone accessible. Those Disclosure by that Patent office taken place at the latest 18 months after that Registration by those Publication the patent application as disclosure writing, however not, if the registration is taken back before. It is open the applicant, to request a premature disclosure.

In Germany these documents become Disclosure writing (disclosure of the registration) and Patent specification (given patent) mentioned. These documents are publicly accessible and in the meantime to also on-line investigatable, z.B. over DEPATISnet or Espace@net (see Web on the left of).

Those Society avails itself that Reward by the temporally limited monopoly, in order to motivate the inventor, its Knowledge to make generally usable accessible and at expiration of the period of protection.

Like already during the introduction of the patenting there are again discussions over the economic and social sense and purpose of the patenting (see the articles Patent on lives, Software patent, computer-implemented inventions, Trivial patents and Business practices).

To the patent that is related Utility model. It does not concern contrary to a patent an examined patent right, separate around a pure registration right. So that a utility model is legal, the protected invention must be new in addition, on an inventive step are based and commercially applicably its. It does not apply however the absolute, separate a reduced novelty term. Only written descriptions (world-wide) or uses of the invention in the inland the announcing day ago are prejudicial as to novelty. Publications of the inventor within 6 months before the registration to the utility model by it or its legal successor are irrelevant with the evaluation of the novelty. The requirements in terms of the erfindungshoehe are smaller than to a patent. Further no procedures can be protected with a German utility model. (wrongproves) also utility models become colloquial and Marks often as patents designates, also in the advertisement, which is among other things competition-legally precarious.

The way to the patent

For the acquisition of a patent a patent application must with a national or regional patent office (z. B. German patent and office for mark or European patent office) to be submitted. Depending upon kind and place of the registration different become Patent Acts used. With both offices also an international patent application can after that Patent Cooperation Treaty (PCT) to be submitted. In a PCT registration can be designated at present over 140 states, in those the registration to be valid is. Only after 30 months starting from the priority day then the national phases (translation into the respective national language must, Agency by patent lawyer locally) to be introduced.

In order to facilitate an attaining of an international patent protection, those can Priority the first registration one year long in other countries in requirement to be taken, except for registrations from and in countries, those not that Paris federation agreement joined. That is, one knows a patent application in Germany to 8. January 2002 submit and has then one year time, in order to submit it in other countries. It comes on on the entrance of the request with the respective patent office (roofridge ton of file), so that for the treatment remains to effectively less time, there registrations normally in that Office language the respective country to be drawn up must. With European patent office can the procedures however on English, German or French to be accomplished.

Into that The USA however described the above does not apply roofridge ton of file Rule (who has as the first the registration submitted? Date documents by the patent authority), separate the rule roofridge ton invent (who has the invention as the first made - in the laboratory, in the office or at home etc.? Date must be documented by the inventor by recordings), which grants a novelty close time of one year, that is, the invention may do one year long publicly admits to be, and nevertheless still another patent can be announced on it. This can lead to juridical insecurity, particularly in the USA, because the exit of law cases, in those the day of the invention to be proven must, is hardly foreseeable.

Invention

Inventions teachings are to the regular Act, some causally surveyable Success cause under employment of controllable natural forces without inserting understanding-moderate activities reproducibly.

No inventions and are therefore not patentable Discoveries, thus z. B. Realizations, as somewhat functions, and in particular planting places and animal species. A regular use of a discovery (z. B. Extraction an active substance from a plant) is however again patentable.

The invention of an alleged is generally not patentable Perpetuum mobile.

Just as little can after § 1 Abs. 2 and 3 PatG and Kind. 52 Abs. 2 and 3 EPUe scientific theories and mathematical methods, aesthetic creations of form, Plans, Rules and procedures for mental activities, for plays or for business activities, as well as programs for data-processing systems and the rendition of information as such patentrechtlich to be protected.

Further can in accordance with § 2 PatG and Kind. 53 EPUe no patent protection for inventions to be given, against the public order or the good customs one offended to their publication or utilization, as well as planting places (see Sort protection) or animal species, as well as essentially biological procedures for breeding of plants or animals. Whether one these exceptions of that Patenting bar as restrictions of the invention term understands or as exclusion about inventions about the patenting bar, a question is essentially that Terminology.

However it is possible, Procedure to the use or Application to patent from discoveries to; therefore patents are on a welfare method, for example on the decoding of the human gene COM is based, distributionable, which of the opponents of such patents often as Patent on lives one designates.

The demarcation between technical and non-technical inventions however often prepares problems, in particular with computer-implemented inventions (often as Software patent ) the evaluation is designated of the technical Contribution for the state of the art with difficulty.

Novelty

An invention is new, if it not to "State of the art"belongs (§ 3 PatG and Kind. 54 EPUe). Everything forms the state of the art, which the announcing day ago that Public by written or verbal Excessive quantity or in any other way was accessible.

The novelty judges itself by the stressed invention, D.h. that Combination all stressed characteristics; it is thus innocuous, if particular or all characteristics of the invention for itself already admits were. Because even if all elements for itself taken admits were, so their combination can have been still unknown nevertheless in the concrete device or in the concrete procedure. For the patentability is then however still the inventive activity (in Germany often: Erfindungshoehe) decisive.

The novelty term is not subject to temporal or spatial restriction, there everything, which admits the announcing day ago was, one considers. Also again emerged knowledge counts as prejudicial as to novelty, even if it was completely forgotten (bspw. Cure, in one Mummy one found).

In order to prevent double-patentings, for the neuheitspruefung patent applications submitted also in former times are consulted, even if these to the announcing day not yet were revealed (older registrations so mentioned). Thus the registration submitted in former times enjoys priority (roofridge ton of file - see above). Becomes thus for example a registration to 8. January 2002 submitted and for the same invention to 9. January 2002 a further, then can for the later registration for lack of Novelty no patent to be given. The registration should take place however in different countries, so both patents in their respective area of application can exist also next to each other.

Inventive activity (erfindungshoehe)

A technical advancement is only then a patentable invention, if it itself for the average Specialist, that the entire state of the art knows (a theoretical shape), not in obvious way from the state of the art results in (§ 4 sentence 1 PatG, Kind. 56 sentence 1 EPUe). That is, it is missing on Erfindungshoehe, if one can expect from this specialist, that it, outgoing from the state of the art on these Solution immediately and at a reasonable expenditure would have come, without becoming inventive active.

This criterion is after the iurisdiction of the Federal patents court, of the Federal High Court and the technical complaint chambers of the European patent office to understand purely objectively. It does not play a role, as the invention which can be judged was made actual and whether it meant a special achievement subjectively for the inventor.

Erfindungshoehe lacking leads in general practice quite frequently to the rejection of the patent application and is in the number of the revocation or the declaration of nullity of patents the determining reason, outweighing far.

However the evaluation of the erfindungshoehe causes a certain uncertainty in practice, because it only in knowledge of the invention to take place can (review-end viewpoint) and thus considerably on a werturteil and also the subjective view judgement ends depends. In practice of the European patent office thereby one meets to this problem, that from the technical contribution of the invention for the state of the art the technical task solved thereby it is judged and the inventive activity is judged by it, whether the solution of this task in light of the state of the art was obvious (Task solution).

For inventions, for a patent the necessary erfindungshoehe do not exhibit, sometimes the possibility exists, over a national Utility model registration To attain protection, because the utility model a lower erfindungshoehe (inventive Schritt)erfordert.

Commercial applicability

Furthermore the invention must applicable on any commercial area -- including the agriculture -- its (§ 5 Abs. 1 PatG, Kind. 57 EPUe).

Thus are to today in particular countries Roman into that (FR, , IT) still alive patent law tradition inventions excluded from patenting, those do not function, yet or during their conversion no material products are not technically convertible on the market to be brought. In Germany exists "commercial applicability"hardly still as independent test criterium, will separate rather under the question of revealing the invention in the registration (§ 34 Abs. 4 PatG) summarizes. After the European patent law the requirement of sufficient revealing exists likewise apart from the commercial applicability (Kind. 83 EPUe). In Germany became "industrial"/"industriel" with "commercially" shown, which is often used again on international level as argument for the weakening of the term.

The term of the commercial applicability is understood at the European patent office far and is in practice of subordinated importance. It does not depend on it, whether the stressed article actually in one Trade one uses. It is sufficient, that it can be manufactured in a technical industrial concern or used otherwise. Therefore for example also teaching materials for the school or devices are patentable to the liturgical use. It does not depend also on it, whether one makes "money" with the device or the procedure can, determining is alone, that the stressed article can be used outside of the privatsphaere.

As commercially applicable procedures for the surgical and therapeutic treatment and diagnosis at the human or animal body do not apply (§ 5 Abs. 2 PatG, Kind. 52 Abs. 4 sentence 1 EPUe). This does not apply however to products, in particular materials or material mixtures, to application in such a procedure. Therefore for example operation instruments and medicaments (because of their fabrication in a technical industrial concern) are quite commercially applicable.

Furthermore the diplomatic conference from November 2000 decided, To paint kind 52(4) EPUe, so that this last remainder of the traditional meaning of "commercial application" ("industrial application"/ "application industrielle") from the law disappears and it thus becomes still heavier, to return this test criterium its original sense. There the paragraph however only into the kind. 53 EPUe (Exceptions of the patenting bar) one shifted, in practice little will probably change.

The European parliament has itself in its tuning of 24. September 2003 over the software patent guideline in kind. 2d for a redefinition of "industrially" as "with the automatic Production material goods connected "expressed. This definition is rejected by the European Union advice (working group of the national patent offices). By such a definition each non-automatic production method and each procedure became, no production method is, excluded from the patent protection, D.h. very many inventions, those are now undisputed patentable, would be then no longer patentable.

End of the patent protection

Those maximum running time of a patent amounts to loud § 16 PatG, Kind. 63(1) EPUe 20 years starting from date of registration. In accordance with § 16a PatG, Kind. 63(2) b) EPUe i. V. m. VO (EEC) NR. 1768/92 can however for inventions, after aufwaendigen procedure of admission (above all clinical studies with medicaments) economically to be only used can, supplementing protection certificate are given, that the patent running time then by maximally five years extends.

A patent runs prematurely out, if those Payment of the annual fees adjusted becomes or the patentee in other way on the patent done without.

Further a patent can be recalled or explained for futile. Thus became as result of the 2. World war all German patents for futile explains.

A patent becomes after the punctual Objection third by the patent office recalled, if the announced invention not patentable is, not completely reveals became, one illegal withdrawal or the original patent request was present inadmissibly extends became. For those Declaration of nullity a patent is after validity in law one Complaint before the federal patents court against the patentee necessarily. The reasons for anulment correspond to the revocation reasons, whereby here those inadmissible extension also against the originally given patent one examines.

Effects of the given patent

A patent of the EPA unfolded in each Contracting State, for it is given, in accordance with kind. 64(1) EPUe the same effect as a national patent of this Contracting State. Questions of the infringement of a patent are judged by national right, in Germany thus after the PatG.

With the distribution of a patent by that Patent office becomes the patentee for the duration of the patent running time Ausschliesslichkeitsrecht at the protected invention lent. Of traffic protection reasons only the requirement on remuneration consists in accordance with before the patenterteilung § 33 PatG, that is called the applicant for a patent can the payment of a hypothetical royalty require.

Material save area

Loud § 14 PatG, Kind. 69 EPUe (with separate interpretation minutes) the save area of patents becomes by those Patent claims determined. The description and the designs are to be consulted however for the interpretation of the patent claims. Thus third the patent right search is to be simplified.

Apart from the wording-in accordance with-eaten use of the stressed article the patent protection extends depending upon national right also up Equivalent one the invention, that is called on those essentially identical effect with employment that essentially resembles means. Modifications, on an inventive activity of the user are based, are not however enclosure by the protection with.

Turned around the so-called stands for the user Shaped brick objection openly: A patent is not hurt, if as equivalent execution form which can be regarded in the priority time to the conditions belonged to the technology, thus as such could not have been patented.

In such constellations certainly the existence of the complaint patent is doubtful, because novelty lacking of the patented invention close lies. This is however because of the double-railedness of the instance in patent things a question of patent nullity proceedings, during that Shaped brick objection in the infringement of a patent procedure to the course comes.

No use right

A patent lends to its owner only conditionally in positive use right, as from it results, that § 9 S. 1 PatG for the use power of the patentee to the "framework of the valid right" refers. Patenting has primarily as a consequence, that the invention may being used in principle by nobody other one than the patentee commercially. Whether however (patented or did not patent) an invention may be also actually used by the patentee, for example in the case of the invention of a medicament active substance by the marketing one Medicament, depends on the general regulations, thus for instance the medicament law with a special procedure of admission. This the protection of the consumers from uncertain preparations serving regulations (s. Police right) are not examined also at all by the patent office. Regarding relative legal positions in relation to other patent rights andor Gegenrechten can be the wording of the law after existing "positive use right" in special cases of importance.

Ausschliesslichkeitsrecht

The patentee receives in accordance with § 9 PatG the right, to exclude other one from the use of the invention, that means Product patents to forbid it third, to manufacture the product, to offer, to bring in traffic to use or. Process patents extends the patent protection apart from the application of the invented procedure also to such articles, by this procedure were manufactured directly (also kind. 64(2) EPUe). In accordance with right assignment § 9 PatG supplemental by an appropriate Requirement for omission after § 139 Abs. 1 PatG.

The patentee knows its financial requirements totally or partly (however not his inventor personality right altogether) in accordance with. §§ 15, 23 PatG through License transfer to others.

§ 11 PatG sees determined Exceptions of the effect the patent forwards. Thus the protective effect of a patent does not extend to that private sector, that means jederman can a patented invention for the personal use use. Further is those Use for experimental purposes released. Which an attempt is exact, leads again and again to controversy, however this regulation is laid out European-wide in such a way, that an attempt is each regular procedure for the production of new realizations, whereby these realizations to the used invention to refer must. From the so-called attempt privilege therefore u are exempted.A. Attempts for the examination of the patenting bar of an invention or for advancement and evasion purposes. Not released however the routine use of laboratory instruments is with attempts, refer to other articles. Further exceptions of the protective effect are those Prior use and the direct single preparation of a medicine by one Pharmacist due to medical regulation.

Beside it the principle that is concerning customary law recognized Exhaustion, therefore the invention embodying articles no more by the Ausschliesslichkeitsrecht of the patentee not to be seized, as soon as they were brought by the patentee or with its agreement in traffic.

Finally make possible §§ 13, 24 PatG as expropriation regulations i. S. v. Kind. 14 Abs. 3 GG when being present an appropriate public interest the distribution of Compulsory licenses by the federal patents court (BPatG). These regulations did not attain great practical importance however.

It exists in Germany as in most other countries no use obligation, that is called the owner must the patent neither lizenzieren, it is still forced, to sell the invention, whereby the protection remains nevertheless upright.

The protective effect occurs with the day of the publication of the patenterteilung. The period of protection can be also shortened by Nichteinzahlung of the annual fees. These annual fees rise each year, in order to get no more necessary patents as soon as possible freely. Also the damage, in the future by the prohibition right develops, continues to increase.

Payment of damages and requirement for enriching

Beside the requirement for omission in its Ausschliesslichkeitsrecht the hurt has in accordance with patentee § 139 Abs. 2 PatG Requirement up Payment of damages, if the violator deliberately or negligently acted. The circle of the negligent action of the iurisdiction is conventionally very far drawn, because of everyone, the one device commercially or a procedure uses commercially uses, to be required can, that it over the patent right situation in the respective technical area informs itself.

The compensation can be calculated after the iurisdiction by three different methods. There is this the escaped profit, the license analogy and the publication of the violator gain. The hurt one can require therefore for its choice either, that it keeps the profit replaced, which he would have gained otherwise by the own use of the patent, or in such a way one places, as if it would have locked a license agreement with the violator on the usual market conditions, or that it the profit obtained concretely by the violator is published.

Apart from payment of damages the patentee of a patent violator knows also publication of unjustified enriching in accordance with. § 812 I 1 2. Old. BGB require, which in cases of which is missing being to blame for of the patent violator of importance is.

Requirement for information

Besides the hurt has in accordance with patentee § 140b PatG Requirement up Information over the origin and the selling way of the used product. Data are to make over names and address of the manufacturer, the supplier and other previous owners, the commercial customer or client as well as over the quantity of the manufactured, delivered, received or ordered products. Further the hurt one has after one too Customary law erstarkten judicial right advanced training requirement on information over the facts necessary for the computation of the requirement for compensation. The information must the hurt one into the situation shifted, to decide between the three kinds of the payment of damages specified above. The information is to be given written and in arranged form. One speaks therefore also of that Accounting.

Requirement for destruction

Beyond that the hurt can in accordance with patentee § 140a PatG require, that the product in the possession or property of the violator, article of the patent is, one destroys, it is, that the condition of the product caused by the law breaking can be eliminated in other way and the destruction for the violator or owner would be in individual cases disproportionate. A requirement for destruction exists also, if it concerns a product, by a procedure, article of the patent is, manufactured is direct.

Prozessuale penetration

The patentee knows these rights with injury of his patent before court in Civil proceedings intersperse against the violator.

The patentee can for the faster penetration of his rights also provisional orders request. As in all cases of the provisional order, can these without legal hearing for the respondent to be issued. In this case the respondent can by that Contradiction the execution of a verbal negotiation reach, in the order provisional over the right moderateness to decide is. The request later proves as unfounded, the applicant the respondent has in accordance with. § 945 Judicial code (ZPO) all damage independently of its Are to blame for to replace.

There those deliberate In accordance with infringement of a patent § 142 Abs. 1 PatG one Criminal offence is, can, likewise without preliminary warning, strafprozessualen determination measures such as house and operating searches as well as kontensperrungen to be made.

The owner of a US patent can bring in a procedure for its territorial range of application further against the assumed violator of the requirements, in its process even, if in the USA the in such a way specified willful infringement one determines, three-way damage sums to be in-complained can.

The economical effects of patents

Economic modelling of the question of patenting

During this question it concerns the question, whether a market participant a patent to announce is or not. This happens under premise of a given, arranged economically rational patent system.

Patents are after economical computations in a certain entwicklungsbereich (technology, Software, Planting places, etc..) then meaningfully, if those Development costs (the costs, for the development of the invention are necessary) are substantially higher than the Plagiierungskosten (the costs, to the development the one Copy the invention are necessary). Because only then the inventor suffers a disadvantage, by the temporally limited monopoly of the Erstanbieters of a product based on the invention not balanced will can. This cost structure differs depending upon entwicklungsbereich strongly:

Like that development processes are in that Technology lengthily. Sometimes one must try many materials out and develop several prototypes, until an optimal procedure was found. With medicines it often takes years, until a good active substance combination was found. This optimal solution becomes however through Market entrance fast admits and can be so easily copied. Like that the development time is much larger (for example 7 years) than the time for copying after market entrance in the technology (for example 6 months).

In the context of the normative organization question of the patent law is the property theory frequently used within the legal rangenature-legal argumentation from economic view inadmissibly, da sich mit ihr keine rationale ökonomische Abgrenzung vornehmen lässt (i.S one trade offs of advantages and disadvantages).

Professional secret

Apart from patenting an invention there is also the possibility, this invention to keep secret (Professional secret). This is only possible, if the invention not in one Product is recognizable or by dividing and/or. Analysis becomes recognizable. Further all persons involved must/ Coworker to be always contently placed.

The large danger with a professional secret consists of it, that third arrives at the information and announces the invention as patent. In the consequence business premises already existing may be further operated (right of prior use), however the enterprise not to be extended or the product into countries without business premises not be exported.

Patenting by third is not permissible, if the professional secret (even in small edition) was published before somewhere in the world.

Trade-cash economic goods

Patents are buchhalterisch detectably and can a market value possess.

They serve that Information of market competitors over technical knowledge and Lizenzierungsmoeglichkeiten: Thus becomes third double work with that Innovation saved, while the patentee can commercialize its invention in the way of the Lizenzierung low-risk. In addition third with the patent right situation are informed about threatening requirements because of infringement of a patent.

Patents are also Basis for co-operation: Patented inventions can be brought into a arbeitsteiligen innovation process or as insert into one society which can be created.

With insolvencies of patent holding every now and then the problem exists, that patents by dubious lawyer companies to be bought up and former competitors with complaints be covered. One speaks of these companies also as so mentioned Patentfreibeuter, because it the patent law for the damage of the competition abuse.

Image effect

Patents become too Advertising purposes used. With Anpreisungen like "patent pending" the consumers associate a better quality of the product and are ready, to pay higher prices.

Patent strategies

Innovative enterprises, those their developments from imitation to protect would like, try a patent protection for such products and procedures to reach, which to an economical, technical or also only one marketing advantage lead, in order to provide so a competition advantage. A comprehensive patent existence of an enterprise can besides then be helpful, if the enterprise of a patent of a competitor liked to make use, since it can offer in response the use one to the competitor or several of its patents.

An alternative strategy for an enterprise, to try in place of patent applications, To keep secret developments, is nowadays risky due to frequent personnel changes increasingly, since the danger of becoming known the development is large outside of the enterprise. Besides the danger exists, that the competition announces the same developments to the patent and from a possibly given patent against the enterprise proceeds.

A not always sharp separation from kinds of patent reads as follows: Supply patents for inventions are announced, their economic usability at the time of the registration yet is not certain. Supply patents, the only existing patents improve, development patents are called. Such supply patents carry naturally to a development of the own patent existence with (see above).

As Sperrpatente such patents are designated, their penetration certainly a competition advantage offers.

Admits less is, that within the range that Standard Industrial enterprises for decades co-operate, in order to make manufactured products compatible. Technical procedures, in a standard described are, cannot be patented, since they are published. Every now and then one fears, that a company can bring and only afterwards betray a patented procedure into a standardisation process, that it holds the now standard patents, to increase the by the standardisation the own paragraph.

There is however in principle the possibility, that with public interest a compulsory license is given, if the patentee refused the grant of a license before against an appropriate royalty.

Patent theory

Positive patent theories

For the justification of the positive patent system different beginnings in the jurisprudence were developed:

  1. Those Property theory as a sign that recognizes inventions Personality the inventor, that is called more individual its Fantasie and technical fate. This property theory does not answer the normative question of the arrangement of a patent system, separate is permissible only as positive theory.
  2. Those Reward theory would like the inventor for its troubles and its revealing as "Teacher of the nation"and"Benefactor of the public"recompence. In the case of special stress of the revealing requirement the reward theory becomes, particularly in the anglo-saxon right circle, also Contract theory called: The inventor mehrt in the sense of a synallagmatischen contract in response for patenting the technical knowledge available for the public.
  3. Those Spurring theory states, that the individual Readiness, in Innovations to invest, by the chance for a national monopoly award one promote. Reward and spurring theory can be regarded as two sides medal: While the spurring theory refers to the economical use of the monopoly award from the ex ante perspective, legitimizes the reward theory this monopoly award under justice criteria from the ex post office perspective.
  4. Furthermore becomes after that Publication theory stressed, that inventions do not have to be kept secret only due to the award of a Ausschliesslichkeitsrechts any longer, thus negotiable right goods become, after a Lizenzierung more effectively by specialized market participants to be then used can. Finally the possibility of an exclusive Lizenzierung favours subsequent innovations, as their yield expectation is stabilized. Premise for the economical use of the patent system is, that the reduction of the general welfare of the increase of the general welfare, caused caused by the reduced serviceability of existing inventions, by the intensified incentive for the future creation of inventions is exceeded. Or, like one Enquete commission the federal daily this interpretation sucked. Information dilemmas describes: Commercial legal protection reduces "social the welfare loss due tons underproduction" under acceptance one "social welfare loss due tons underutilization."
  5. Those Evasion theory stated, that a patent energizes as artificial hurdle in addition, other solutions, yet did not patent solutions to develop. Z.B. if the petrol engine is patented, within the range wankel engine one researches. This theory is problematic, because it is a general justification theory for marktmonopole.

Negative patent theories

  1. The idea of the free market meant, that monopolies cause damage with consumers, because these strongly superelevated prices pay. These pay, so critics with reference to statistics, very many more, as for the development of new inventions one spend. Therefore the patent system is an incentive system, over in Research and development to invest, it is however many more inefficient, to have as no patent system and therefore many lower prices for the relevant products and over Taxes z.B. on these products evenly these Research and development to finance directly.

The theoretical beginnings mentioned do not exclude each other, separate complement each other with the explanation of individual aspects of the patent system. The greatest importance probably spreads the spurring theory measured out. Patent theory explains the positive patent law primarily. Contents and borders of the patent law to specify is against it task of the legislator. As structural interference into the market the patent law must be economically justified. To be made for the normative question of the arrangement of patent law are the specified jurisprudential effect hypotheses to be occupied in individual cases and an economic consideration. Godfather theories serve thus also as arguments in the normative decision over contents and barriers of the patenting, are taken not sufficient however for itself.

Example: The decision is, whether patent law is to be applied to literary ideas. It meets then z.B. to state not, that patents for man of letters mean a stimulus, separate it must first of all be occupied, that this effect actually arises within the range of literary ideas. Secondly goal conformity must prevail, that is called it must the legislator a stimulus to give want, in order to achieve thereby collective a goal. Since literary ideas are not scarce for example, a stimulus could be useless. There within the range of the literature after the usage not the idea, separate that Work counts, the application of the right instrument might promote the wrong object. Thirdly negative effects of the interference must be up-counted against possible positive effects. Fourth systematic considerations or z can.B. ethical considerations a role play. Fuenftens could be pulled alternative patent rights and instruments in the calculation, z.B. sui generis a right for literary ideas, Literature competitions, Subsidies.

Literature

  • Heinrich stroke man, Refuge Goetting, Hans Forkel: Commercial legal protection. 7. Edition. C. H. Beck, 2002, ISBN 3-406-49124-3
  • Volker Ilzhoefer: Patent -, Mark and copyright. 5. Edition. Vahlen, 2002, ISBN 3-8006-2851-1
  • Rudolf of glaring: Patent law - a lehr and a manual. C.H. Beck, Munich 2004, ISBN 3-406-38455-2
  • Christian Osterrieth: Patent law. 2. Edition. C. H. Beck, 2004, ISBN 3-406-51883-4
  • Ernst-Peter Heilein: The meaning of the legal protection for integrated semiconductor circuits in practice - prognosis and problems of a speciallegal protection. Peter long publishing house, 2003, ISBN 3-631-39812-3
  • Fritz Machlup: The economic bases of the patent law, 1961

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