Patent
At the latest, a patent application is published 18 months after the application date at the patent office. The publication can then provide a basis and a benchmark for further developments in the related field.
Before grant of a patent, the invention is examined ex officio by the patent office with regard to the necessary patentability conditions, i.e. novelty, inventive step and industrial applicability. A patent is granted if these conditions are met. The right to prohibit a patent infringement does not start before the patent is granted.
A granted patent lasts a maximum of 20 years from the application date. After the maximum patent duration has expired, inventions in the field of drugs and plant protection products can be protected under certain conditions by supplementary protection certificates for another five years at most.
The effects of a patent are territorially limited. For instance, a nationwide patent can be applied for at the German Patent and Trademark Office, and a patent covering a maximum of 38 European states can be applied for at the European Patent Office. It is also possible to file a PCT patent application covering 152 states with an Office acting at the international level.
Utility model
The German Patent and Trademark Office examines a utility model application only with regard to formal requirements and whether a technical invention is to be protected. The substantial protection requirements, i.e. novelty, inventive step, and industrial applicability are not examined. Compared to a patent, the application procedure is thus considerably shortened and with the registration of the utility model, the applicant obtains a protective right for his/her invention in a short period of time. However, rights resulting from the utility model can only be claimed if the substantial requirements – novelty, inventive step, and industrial applicability – are also fulfilled. The applicant can examine this on his/her own (e.g. based on a search for prior art). Alternatively, the substantial requirements can be examined by the Court in infringement proceedings or by the German Patent and Trademark Office, if a third party files a request for cancellation of the utility model.
In contrast to the patent, a utility model may protect an invention that has been disclosed by the applicant to the public prior to the application date, as long as the application for a utility model is filed within six months after such a disclosure.
The duration of protection of the registered utility model starts on the application date and expires 10 years later, provided it is extended to this term from the first protection period of three years.
Trademark
Registering a trademark gives the owner the exclusive right to use the trademark for protected goods and/or services and to prohibit its use by others. However, the rights arising from the trademark can only be enforced and definitive if the owner seriously uses the trademark after an initial period after filing the application, and if he or she does not suspend the use for more than a period of five years, in some countries more than three years.
Trademark protection can be acquired in different manners. The most common way is to file an application with the competent office. The filed trademark is examined regarding absolute grounds for refusal. Reasons for refusal include non-suitability of the trademark to distinguish the claimed goods and services from those of other companies, and the trademark consisting exclusively of characters or designations which are descriptive regarding the goods and services. If there are no absolute grounds for refusal, the trademark is registered. The protection starts with the registration of the trademark.
In some countries, the office also examines if the applied trademark conflicts with existing trademarks (relative grounds for refusal). In Germany and Europe, the respective Office does not examine relative grounds. The trademark applicant depends on investigating this on his/her own before applying for a registration and using his/her trademark in order to avoid infringement and related cost risks.
Besides an official registration, trademark protection can also arise from intensive use of a mark in the course of business or through notoriety. In practice, it is however in most cases extremely difficult to prove this.
German and European trademark protection can be renewed indefinitely every 10 years.
The effect of a trademark is geographically limited. A trademark registration can cover, for instance, Germany or the entire EU. For several states, it is also possible to apply for an international registration with the World Intellectual Property Organization in Geneva.
Design patent
The registered design patent gives the owner the exclusive right to use the design and to prohibit its use by others.
A condition for design patent protection is that the design must be new and that it has characteristic features. A design is new if no identical design has been disclosed prior to the application date. A design has characteristic features if it gives a user an overall impression that differs from an overall impression of any other design disclosed prior to the application date.
The German Patent and Trademark Office only examines a design patent with regard to formal conditions. The substantial protection requirements, i.e. novelty and characteristic features, are not examined by the Office. However, rights resulting from the design patent can only be claimed if the substantial protection requirements are also fulfilled.
The design patent protection according to German and European law begins with the registration date of the design. It lasts for five years after the registration date and protection can be extended in steps of five years to a maximum of 25 years.
In the EU a non-registered design that has been made available to the public can also have an EU-wide protection. The duration of protection of a non-registered design is three years starting with the date on which it has been made available to the public in the EU provided it was not available to the public.