When you file a utility model application, the German Patent and Trade Mark Office does not examine whether your application complies with all substantive requirements of utility model protection. This shortens the procedure and you have your invention protected within a short time without having to wait for the outcome of the longer patent granting procedure.
You receive an acknowledgement mentioning the date of filing and the file number.
The utility model unit then checks whether your application comprises all required elements, and whether the invention is of a technical nature and eligible for utility model protection.
An incomplete utility model application can entail various legal consequences:
If the application does not have any defects, or if the defects have been remedied, the utility model is entered in the Register.
Splitting off a utility model application
A utility model application can be split off from a patent application having the same contents. This can be useful if you have published your invention before filing a patent application. In that case, patent protection is no longer available since your invention is no longer new. However, you can apply for a utility model within six months from the publication. In this case, the novelty grace period applies: your publication is not considered to be part of the state of the art within this period.
You can use a split-off utility model to supplement a patent application. It provides flanking protection during the otherwise unprotected patent pendency period. Upon registration of the split-off utility model your invention enjoys full protection irrespective of the outcome of the patent grant procedure.
The split-off application is an independent utility model application. Tick box 8 on the request form to indicate that the application is split-off from a previous patent application. Furthermore, you must indicate the file number and the date of filing of the patent application.
Splitting off is allowable within 10 years from the date of filing of the original patent application. The utility model application must be submitted within two months from the rejection or withdrawal of the patent application at the latest.
The utility model unit registers the utility model without previously examining if the substantive requirements are met. In case of a dispute, cancellation proceedings will clarify whether the registered invention is in fact new and involves an inventive step.
Any person may file a request for cancellation. The request is subject to a fee and must be filed in writing together with a statement of reasons.
Before filing a request for cancellation, you should consider the risk of costs. The losing party has to bear the costs including the costs incurred by the opponent.
© 2013 Deutsches Patent- und Markenamt | Last updated 19/06/13