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FAQ

Questions and answers about patent applications




What are patent claims?

The patent claims define the scope of protection of your patent. They need to be drafted very precisely; all technical features for which protection is sought must be exactly specified in the claims.
You can find examples of patent claims at the end of the brochure pdf- Datei Information for Patent Applicants and also in patent documents.


What is the description of the invention?

The description of the invention is an essential element of the patent application. The description should begin with:

  • the title of the invention, which you have indicated in the application form and
  • the technical field to which the invention relates.


The description must indicate and contain:

  • the known prior art
  • the problem underlying the invention (disadvantages of the prior art),
  • the solution of the problem and improvement over the known prior art (i.e. the invention as such, that means
  • the technical problem which the invention solves)
  • an embodiment of the invention
  • the advantages of the invention


See examples at the end of the brochure pdf- Datei Information for Patent Applicants.


What should be considered about drawings as an element of the application documents?

The drawings should allow to clearly illustrate how the features of the invention interact and highlight the essence of the invention. Photographs are not accepted as a replacement for drawings.

If you have made a reference to drawings in the application, but file the drawings at a later date, the filing date will be deferred to the day of receipt of the drawings at the German Patent and Trade Mark Office (DPMA).

If you prefer to retain the original filing date, you must declare that no reference to the drawings shall be made. If no such declaration is received, the DPMA will state this fact ex officio.


What must be contained in the abstract of the documents of the patent application?

The abstract must not exceed 1,500 characters and is intended exclusively for technical instruction.
Elements:

  • title of the invention
  • compact, comprehensible summary of the technical disclosure
  • drawing, if it is mentioned in the abstract


The abstract may also be filed later (but not later than 15 months after the filing date).
Please see our brochure P2794 (in German only) for more detailed information on this issue.


Why do I need to indicate who the inventor is?

Patent applicant and inventor need not be identical. That is why the applicant must indicate the name of the inventor or the names of the inventors within 15 months of the filing date or the priority date.
Please see our brochure P2791.1 for more detailed information on this issue.


What is a preliminary examination of the application?

Upon receipt at the DPMA, the application will be accorded a filing date. The application documents are checked to make sure they meet the formal requirements (Sec. 34 to 38 Patent Act [Patentgesetz]) and there is no obvious bar to patentability (Sec. 42 Patent Act, compare also patentability).
The inventions will be classified by their technical content using a refined international classification scheme. The classification system applied is the International Patent Classification (IPC). It allows to attribute each invention to a defined class. Then, the substantive examination, the actual patent examination, may start.


What happens during the patent examination?

The patent examination procedure starts only when you have filed a request for the examination of the patent and have paid the request fee (Euro 350). Then a substantive examination of the patentability of your invention under Sec. 1 Patent Act (Patentgesetz) (novelty, industrial applicability and inventive step) is carried out. If your invention does not meet the requirements of the Patent Act, it must be rejected.

If your invention meets the patentability requirements, the examiner will grant a patent.

A mention of grant will be published in the patent gazette (Patentblatt) and a patent specification will be published.

If no notice of opposition to the patent is given, the patent will take effect. The maximum term of protection is 20 years.


How long does the patenting process take?

The patent procedure takes 24 to 30 months on average, provided that the examination request has been filed within the initial four months from the filing date and the examination fee has been paid.


What is the first publication of the patent application (Offenlegungsschrift)?

When an application is filed at the DPMA, the invention is initially kept secret for 18 months. In most cases the examination takes place during that time period. Even if the examination is not yet concluded, the invention will be published after 18 months from the filing date.

The DPMA publishes "Offenlegungsschrift", the first publication of the application. It contains the written presentation of the invention in its original form as submitted on the filing date. The first publication of the application informs the public on possible future patent rights and protects competitors from double developments.
During the period of secrecy the applicant may decide whether or not he wishes to further proceed with the application. He may also withdraw the application before the first publication so that details of his invention will not become available to the public.

The application will also be published if no examination request has been filed. The first publication of the patent application does not yet give the applicant valid industrial property protection or an exclusive right to the invention.

If the patent examination is concluded by the grant of a patent before the expiry of 18 months, the patent specification will immediately be published, instead of the patent application.


What legal remedies are available?

After the grant of the patent, the DPMA issues the patent specification. Any person may give notice of opposition within three months of the publication of a patent. The opponent may give reasons against the grant of the patent which were not yet known during the examination. In that case the invention will be re-examined by an examination panel. At the outcome of the examination the patent is either revoked or maintained as granted or in an amended form.

In case of revocation, the patent owner may appeal against the decision and the case will be further dealt with by the Federal Patent Court (Bundespatentgericht). If the patent is maintained as granted or in an amended form, the opponent may file an appeal to the Federal Patent Court.

If the opposition period has expired or opposition proceedings are no longer pending, a nullity action may be brought before the Federal Patent Court.


When can I claim priority?

The date of receipt of the patent application is also called the "date relevant for the priority of the application" or the "priority date".
If an applicant has filed an application for the same invention in Germany at an earlier date, he may claim priority of the earlier application (domestic priority). That means that the second application will be given the date relevant for the priority of the earlier application. The second application must be filed within 12 months from the earlier application.
A domestic priority may be claimed, for example, if the original invention has been further improved. During the examination, it is not allowed to add anything to the invention. That is why a further development of the invention, an improvement or an alternative may only be protected in a fresh application.

You may claim priority for an application in Germany from a previous foreign application as long as the later application is filed within 12 months.

To obtain priority from the earlier application you must give, on your own initiative, the file number of the original application. If you wish to claim priority of a foreign application you must give the date, country, file number of the earlier application and submit a copy of the earlier application.


Can I apply for a patent myself without the help of an attorney?

Applicants can apply for IP rights themselves. It is at the applicant's discretion to decide whether to seek the help of an attorney. However, persons who do not reside in Germany must appoint an attorney in Germany or an attorney established in the European Union to act on their behalf.


Is it allowed to give the signature with a signature card of other members of staff of the law firm (not a lawyer/attorney), if an application is filed online by a lawyer or patent attorney via DPMAdirekt or epoline?

When filing online via DPMAdirekt and epoline, the final signature with a signature card may only be given by a lawyer or patent attorney but not by other members of staff of the law firm according to the German Legal Services Act (Rechtsdienstleistungsgesetz). Otherwise, the DPMA will request a handwritten signature of the lawyer/attorney authorised to represent.


How do I exploit my patent? Where can I find advice and funding schemes?

Our duties do not include patent exploitation or fighting patent infringement. There are specific information portals on the Internet, established with public support, that provide information on IP exploitation and the promotion and funding of innovation and technology.

In addition, the chamber of patent attorneys (Patentanwaltskammer) offers free initial consultations for inventors for inventors at the DPMA in Munich, the Technical Information Centre in Berlin, some patent information centres and chambers of commerce and industry.


Has the DPMA received payment of the annual fee for my patent and has the payment been processed?

For patents which are still in force the next due date is displayed in DPMAregister/ in the section Patents and Utility Models/ in the list of master data/ in the line "Due date".

In some cases, the computation of the next fee due may be delayed. Then, the line "Due date" will temporarily not be displayed.

If the full and correct fee amount has been paid in respect of the file number, the payment is usually processed within the next 35 days and - if admissible - the next due date will be indicated in the corresponding line.

Since 01 June 2011, the DPMA has stopped issuing receipts (see also Mitteilung Nr. 7/11 der Präsidentin des Deutschen Patent- und Markenamts), but you can use the updated data of your register entry as confirmation of payment.

Information on the amount of the fees payable is available on the fees page or in the leaflet pdf- Datei Information Concerning Costs, Fees and Expenses (A9510.1).

General information (in German) on fee payments to the DPMA is available here.


May I use a patent document (text and drawings) for my research paper or a presentation, that means may I copy it? Are patent documents protected by copyright?

Under Sec. 5(2) Copyright Act (Urheberrechtsgesetz), patent documents (published patent applications, patent specifications and utility model documents) are exempted from copyright protection from the time of their official publication. Please note that you are required to cite the source correctly when you publish a paper. The obligation to cite the source comprises the name of the authority and the reference. For example, you cite a patent document as follows:

  • DE 27 03 353 A1 or
  • DE 10 2005 051 128 B4.

For further examples on how to cite please see our information leaflet DPMAinformativ Nr. 3 (IPIA) [in German]. You are not allowed to alter the text, the title, the drawings and the name of the patent applicant (see Sec. 62(1), 1st and 2nd sentences in conjunction with Sec. 39 Copyright Act: prohibition of alteration, and Sec. 63(1) and (2) Copyright Act: acknowledgement of source).


Complete collections of patent documents are frequently offered on the Internet or in small ads. Is this allowed? Are these offers trustworthy?

When a search agent has compiled vast collections of patent documents and offers these on the Internet or in small ads, he offers the added value - this means the time, technical know-how, experience in the field of patent search - which he has invested in establishing the collection. However, he must not give the impression that he acts at the official request of the DPMA. Furthermore, he must observe the prohibition of alteration provision of Sec. 5(2) Copyright Act (Urheberrechtsgesetz) in conjunction with Sec. 62(1), 1st and 2nd sentences and Sec. 39 Copyright Act, and the obligation to acknowledge the source arising from Sec. 5(2) Copyright Act in conjunction with Sec. 63(1) and (2) Copyright Act. The provider is not likely to offer any guarantee for the completeness of the collections.

If you require information on the current state of the art we therefore recommend to carry out a timely patent search. You can conduct this search yourself in a patent database such as DEPATISnet or have it carried out by an expert. The patent information centres and professional information providers carry out patent searches. You can also commission a patent attorney to perform a search.

Quick downloading of large result lists and complete documents is only available within the scope of our payable DPMAdatenabgabe service.


Do you have any further questions?

Then please call us at +49 89 2195 - 3402 or send an e-mail to info@dpma.de. The enquiry unit of the German Patent and Trade Mark Office will be pleased to answer your questions about patent applications. Please note that the enquiry units do not give legal advice. Legal advice is exclusively provided by patent attorneys and attorneys-at-law.

© 2014 Deutsches Patent- und Markenamt | Last updated 31/10/14