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GERMAN PATENT LAW.
Term Paper ID:29771
Essay Subject:
Protection of intellectual property.... More...
10 Pages / 2250 Words
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Paper Abstract:
Protection of intellectual property. Historic position of granting a patent only if the invention was truly new and representative of a technical step forward. Restrictions of the law. Modifications with passage of the 1986 German Utility Model Act granting protection for minor inventions. Copyright and trademark protection.
Paper Introduction:
Business Law
German Patent Law
INTRODUCTION
German Patent Law reflects a long history in Germany, one whose laws on patents and other forms of protection have been adopted by other countries like Japan. Up until the adoption of the German Utility Model Act (1986/1994), German Patent Law was distinct in one major way. In Germany, it was only possible to be granted a patent if you invented something that was truly new. Involved in this concept was the criterion that something worth a patent must exceed current state-of-the-art technology. For example, Amazon.com’s “one-click-shopping” would not qualify. As the intellectual property law firm of Ladas & Parry (2003) assert, “German Patent Law required that for patent protection an invention must not only be
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International intellectual property laws come under the auspices ofthe Agreement on Trade Related Aspects of Intellectual Property Rights(TRIPs). After paying a fee and being granted protection, the patent isplaced into the patent register and listed in the Patent Office Journal.To be granted patent protection, inventions have to be accessible forcommercial use. Laws that apply to patent protection are quite variedon a country to country basis. (2) Personal intellectual creations alone shall constitute workswithin the meaning of this Law. Theend outcome of EPC approval is not a patent good across Europe. When dispute regardingintellectual property protection arise, the Center mediates the dispute.Other international organizations are also involved in intellectualproperty issues. The WIPO was foundedin 1967 and is responsible for "promoting the protection of intellectualproperty throughout the world and ensuring administrative cooperation amongthe various agreements dealing with intellectual property" (Weigmann, 2 ,3). As the intellectual property law firm of Ladas & Parry (2 3)assert, "German Patent Law required that for patent protection an inventionmust not only be new, but represent a technical step forward" (Germany, 1).BODY It is most often intellectual property, an intangible product of themind's efforts, which is protected by patent, copyright, trademark andtrade secret law. This gives time for anyoneopposing the patent to bring proceedings against the grant of patent. Before the adoption of the Paris Convention, if an individual wishedto be granted patent protection he or she has to file an application ineach country where patent protection was desired. For example, Germany,Europe and Japan afford patent protection to the first to apply for apatent, while in the U.S. works of fine art, including works of architecture and of appliedart and plans for such works; 5. The German Patent Office grants patents for those seeking protectionin Germany. Copyright protection differs from patent protection in a number ofways. I. For example, in accordance with the PatentCooperation Treaty, international applications for patent protection canalso be given to the German Patent Office. (Nov 1 , 1994). Available: http://www.germany- info.org/relaunch/business/doing_business/property.html, Germany Embassy, Washington, DC, 1-2.Patent Act 1981, Germany. German Copyright Law was last amended in 1998. Business Law German Patent LawINTRODUCTION German Patent Law reflects a long history in Germany, one whose lawson patents and other forms of protection have been adopted by othercountries like Japan. Under this law trademarks, commercial designations and indications of geographical origin areafforded protection. This also had to beachieved on the exact same date for each country. Mostof these changes have been directed at simplifying and unifyingintellectual property law, while providing for established channels ofmediation and contesting of grants of protection. musical works; 3. Available: http://8 .81.1 1.122/t_en/p/de/p_r51_en.asp?adtod=7 , 1-5.Auerbach, J. (Sep 1994). Nevertheless, there are a variety of other treaties,conventions and organizations that have had an impact on Germanintellectual property law. Intellectualproperty law will continue to become more complex and regulated on aninternational level due to the increasing globalization of the world'sbusiness and markets. (Mar 1, 2 ). Available: http://www.autm.net/patent/nacua.html, Howrey & Simon, Washington, DC, 1-14.Copyright Law: Germany. The TRIPs agreement will be implemented with transition periods generally of one year, five years or eleven years. The narrow restrictions within German Patent Law meant thatinventions not representing state-of-the-art advances were left outside theumbrella of legal protection. This law affords protection for minorinventions or simple devices but does not protect methods or compositionlike the broader Patent Law. As such intellectual property can be sold,purchased, licensed, or transferred like personal property. As Article 1 of the amended 1994 German UtilityModel Act states: "Utility model protection shall be afforded to inventionsthat are new, involve an inventive step and are susceptible of industrialapplication" (Utility, 1994, 1). According to Auerbach (1994), patent protection affordsprotection to more than the actual invention: Patents provide a means for protecting the physical embodiments of certain classes of new and useful inventions. Available: http://8 .81.1 1.122/t_en/p/de/p_r51_en.asp?adtid=696, 1-7.Germany patent law history. According to Auerbach (1994) copyrights areafforded to protect "expressions of an original artistic idea", while atrademark protects a "word, name symbol, design, or slogan" that serves thepurpose of differentiating the product or service of one individual orcompany from those of another (2). A Council for TRIPs will be created to monitor the operation of the Agreement and governments' compliance with it (Weigmann, 2 , 2). Typically such inventions are innovations toalready existing products and processes. photographic works, including works produced by processes similarto cinematography; 6. German Law on the Protection of TradeMarks and Other Signs was last amended in 1998. Available: htpp://www.ladas.com/Patents/PatentPractice/PettyPatents/PettyP 2.html, Ladas & Parry, 1-3.Legal protection of industrial property rights. Patents are enforceable for 2 years from the initial EPC filing date. Under the Law on Utility Models, the inventor is afforded exclusiveuse of his or her invention for up to eight years. Foreigners also apply for patent protection in the samemanner. According to Chapter 1, Article 3(1), signs capableof being protected by trade mark also include the following: Any signs particularly words, including personal names, designs, letters, numerals, sound marks, three-dimensional configurations, including the shape of goods or their wrapping as well as other packaging, including colors and combination of colors, which are capable of distinguishing the goods or services of one undertaking from those of other undertakings (German, 1998, 1). Togetherthese organizations facilitate the Council for TRIPs. Germany also has in force copyright and trademark protection forintellectual property. In contrast to U.S. By adopting this convention,Germany eliminated its requirement that the invention must show technicaladvance. (Auerbach, 1994, 11) The protection that comes from being issued a patent is aterritorial protection and enforceable in just the country that grantspatent protection. Patentprotection is one of the most common forms of intellectual propertyprotection. Those who hold patents can applyfor an injunction against anyone unlawfully using a patented invention.Known as the "right of prevention", the injunction "provides temporaryprotection and is effective as soon as the patent registration is announcedby the Patent Office" (Legal, 2 3, 1). InGermany, it was only possible to be granted a patent if you inventedsomething that was truly new. With the increasingly global nature ofbusiness, acquiring patent protection in foreign countries can be asignificant aspect of success. illustrations of a scientific or technical nature, such asdrawings, plans, maps, sketches, tables and 3-D representations. Two international organizations that are directly related tointellectual property and its protection are the World Trade Organization(WTO) and the World Intellectual Property Organization (WIPO). Available: http://www.patentfirm.de/news/clinical-tests.pdf, 1-12.Wiegmann, S. During the conclusion of thefinal round of GATT trade negotiations, TRIPs came into being based on thefollowing line of reason: With the ongoing integration of the world economy, and with production becoming more technology intensive, there was concern that the absence of a multilateral framework for addressing intellectual property issues could create problems, including tensions in international commercial relations. The Convention establishes a priority date for each invention, and provides that any foreign filing that is complete within twelve months of the priority date will be considered as though filed on the priority date for purposes of determining conception. Underthe German Copyright Law of 1998, the following types of works areprotected by copyright: Article 2 Protected Works (1) Protected literary, scientific and artistic works: 1. Germany is one ofnineteen EPC member states. Ironically, the German Utility Model Act becamemoot after Germany adopted the European Patent Convention to harmonize itspatent laws with those of the rest of Europe. The Paris Convention is the hallmark offoreign patent protection. One such organization is UNESCO which routinely dealswith matters of copyright and cultural property.CONCLUSION In conclusion, one can readily see that the increasing globalizationand unification of the world's businesses and markets is having a dramaticimpact on intellectual property law in many countries like Germany. This loophole in intellectualproperty protection law was rectified by Germany with the passage of theGerman Utility Model Act (1986). (Jul 16, 1998). (2 3). patent protection is afforded to the first toinvent a property seeking a patent. As Ladas & Parry (2 3) explain, it also eliminated anothersignificant feature of German intellectual property protection: "Theharmonization also required Germany to give up a feature that was regardedas being important by many in the German professions and industry, namelythe six month grace period in respect of publications by an inventor"(Germany, 1). (2 3). Patent protection is granted for a period of 2 years from thedate of registration (Legal, 2 3, 1). Only the EuropeanPatent Office (EPO) has the power to grant a patent, and the applicationmay take up to a year-and-a-half to publish. Significantly, after grant, each patent is enforced under the laws of the particular country that issued it. Available: http://www.iuscomp.org/gla/statutes/UrhG.htm, WIPO, 1-36.German law on the protection of trade marks and other signs. (Copyright, 1998, 1) As Weigmann (2 ) notes, "When we speak of the law of intellectualproperty, we are generally speaking of the law of a particular jurisdictionlike the U.S., France or China" (1). Available: http://www.llrx.com/features/iplaw.htm, 1-1 . (May 8, 1998). References198 /1994 German Patent Act. TRIPs is part of the General Agreement on Tariffs and Trade(GATT), signed by all participating nations. In other words, under the German UtilityModel Act, inventions did not have to demonstrate a technical advance tomerit patent protection. In general copyright protection is granted for a longer durationthan patent protection. However, because of efforts toharmonize intellectual property law in the global level, a number ofinternational conventions have had a significant impact on nationalintellectual property law. Thisincludes signs whose shape is the result of the actual goods, those neededto achieve a technical outcome, and those that add significant value to theproduct or services. Up until the adoption of the German Utility ModelAct (1986/1994), German Patent Law was distinct in one major way. The German Patent Act inforce today is the product of many amendments, including major changes in198 and 1994. The WIPO also consists of an established Arbitration and MediationCenter that was founded in the mid-199 s. In 1874 Germany implemented a trademark protection law, in1876 Legislation Relating to Designs, or Patterns, or Utility Models wasadopted, and in 1877 Germany passed a comprehensive Patent Law stemmingfrom the principle of mandatory examination. Under the terms of the convention, a membernation only has to file one patent application with the EPC that willprovide protection in all member state jurisdictions. practice, there is no unified law in Europe relating to enforcement and infringement of patents. The scope of this law is broad like patent law andcovers a variety of signs possible for trade mark protection. However, as Auerbach(1994) explains, the Paris Convention changed this process to simplify andunify it: The Paris Convention greatly simplifies the foreign filing of applications. On one level intellectual property is akin to materialor personal property. It is the broadest form of intellectual property protection, encompassing not only the precise machine or process invented, but also variant machines or processes that may employ the underlying concept of the invention (1). Involved in this concept was the criterionthat something worth a patent must exceed current state-of-the-arttechnology. works of language, such as writings speeches and computerprograms; 2. Article 1 of the German Patent Act (1994) states: "Patentsshall be granted for inventions that are new, involve an inventive step andare susceptible of industrial application" (Patent Act, 1994, 1). So, too, patent protection covers the functionaland non-artistic aspects of intellectual property, while copyright law onlyaffords protection from infringement of non-functional aspects of aninvention or idea. Rather itis merely an examination and processing system that is uniform throughoutEurope but does not represent a final grant of protection. Available: http://8 .81.1 1.122/t_en/p/de/p_r51_en.asp?adtid=991, 1-1 .1986 German Utility Model Act. The system proceeds from this process and is unique from U.S.unified patent protection: After grant, an applicant must translate the application into the language of each country of the EPC in which patent protection is desired. It is likely that futuredevelopments will continue to see modifications in intellectual propertylaw in Germany and others nations as globalization continues to occur.Regardless of the changes or modifications that occur with respect toGerman intellectual property law, one thing remains certain. Patent law basics. German intellectual property laws were largely formulated in the19th century. (2 3). Researching intellectual property law in an international context. In order to make acquiring a patent in Europe less complex, theEuropean Patent Community (EPC) was founded in 1973. For example, Amazon.com's "one-click-shopping" would notqualify. According to a report of theGerman Embassy in Washington, D.C., "Based on the Community PatentConvention, European patents with validity in several European Union statesmay be registered at the European Patent Office based in Munich" (Legal,2 3, 1). The convention is a multilateral treaty thatembraces the concept of the "right of priority" (Auerbach, 1994, 1 ).Practically every developed country in the world, with the notableexception of Taiwan, is a signatory of the Paris Convention. The priority date is the filing date of the first application (1 ).Despite such efforts at simplification and unification, major differencesexist among patent laws of different countries. (Sep 1994). We have already seen how Germany eliminated its"technical advance" principle to harmonize its patent laws with those ofthe rest of Europe. works of pantomime, including choreographic works; 4. Protection is affordedonce the utility model patent is entered into the Utility Model Register atthe German Patent Office.
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