The continued decline in utility model applications, a trend that had been seen for more than ten years, stopped in 2020, the coronavirus year, of all years. On the contrary: Due to an enormous increase especially in the technology field “Other consumer goods” by 84.0% compared to the previous year, the total number of applications was higher than in 2019 and even in 2018. In view of the pandemic, it comes as little surprise that applicants focused on what are known as community masks and respirator masks. A significant increase of 11.4% was seen in the field of civil engineering too.
Fortunately, the coronavirus pandemic hardly affected the activities of the Utility Model Unit, so the increase was easy to handle. Like patent procedures, utility model procedures have been processed fully electronically since 2011; more than three quarters of the staff of the Utility Model Unit had teleworking posts before the pandemic and were able to work entirely from home without any problems. It is thus possible to ensure secure and flexible working conditions for the few colleagues who are still working in the office, especially with regard to the applicable social distancing and hygiene requirements.
After 11,667 applications in the previous year, a total of 12,323 new applications were received by the office in 2020; this corresponds to an increase of 5.6%. The German Patent and Trade Mark Office (DPMA) received 59.4% of the applications electronically. The Utility Model Unit entered 10,736 utility models into the register; this means that 87.8% (previous year: 87.0%) of the concluded procedures resulted in a registration. 1,496 applications did not result in a registration because of withdrawals of applications or refusals or for other reasons.
In 2020, the term of protection was renewed for a total of 18,166 utility models (2019: 18,831) after payment of the maintenance fee. The number of utility models lapsed for example due to the expiry of the longest possible term of protection or because no request for renewal had been filed increased slightly from 12,628 in the previous year to now 12,796.
At the end of 2020, 74,900 valid utility models were registered at our office.
In 2020, too, foreign applicants had a strong interest in German utility models, as can be seen from the slight increase of the proportion of applications from abroad from 27.7% (3,231 applications) in the previous year to 27.8% (3,426 applications). The trend towards PCT applications in the national phase, which had already been observed in the previous years, was reinforced; with 651, the number of these applications was considerably higher than in 2019 (430). 8,897 utility model applications (72.2%; 2019: 72.3%) came from Germany. The majority of foreign applications came from non-European countries (2,267; 2019: 1,980), whereas the number of applications from other countries in Europe decreased further to 1,159 (2019: 1,251).
The People’s Republic of China considerably strengthened its leading position with 1,052 applications (2019: 720) and a proportion of 8.5% of all applications, followed by Taiwan with 3.3% and the US with 2.8%. Applicants from Switzerland filed 200 applications (just over 1.6%) and those from Austria filed 194 applications (just under 1.6%).
|countries of origin||Applications||Percentage|
|Republic of Korea||131||1.1|
With 2,251 applications, North Rhine-Westphalia is still the undisputed leader in the Länder ranking (25.3% of all domestic applications), followed by Bavaria and Baden-Württemberg with 2,023 applications (22.7%) and 1,577 applications (17.7%), respectively. However, seen in relation to the size of the population of each German Land, Bavaria leads the ranking with 15 applications per 100,000 inhabitants, followed by Baden-Württemberg with 14 applications and North Rhine-Westphalia with 13 applications.
If the cursor is moved over the chart, it shows the utility model applications in 2020 per German Länder (residence or principal place of business of the applicant).
In 2020, the absolute number of split-offs from patent applications fell by 26 compared to the previous year to 1,205; at the same time, the percentage of split-off utility models in relation to the total number of applications decreased from 10.6% of all applications in the previous year to 9.8% of the applications in 2020. This means that, despite a decline in split-off utility models, many patent applicants still use the application for a low-cost and quickly effective utility model as an accompanying measure to effectively take action against the copying of their innovation as long as the patent sought after has not yet been granted. The utility model is suitable as an ideal complement to this IP right if it is “split off” from a patent application. The split-off option allows you to claim the filing date of the earlier patent application for the utility model application. That day is then deemed the filing date of both applications.
Utility models are registered after an essentially formal examination following the filing of the application; there is no examination of the invention as to novelty, inventive step and industrial application. This is an essential difference from patents. The applicant can minimise the procedure-related risk that the IP right may be cancelled later by having a prior art search conducted at an early stage to determine whether anything comparable to the invention was already known at the filing date of the utility model application. For a fee of 250 euros, the patent examiners of the DPMA conduct such a prior art search. In a search report, they list the publications and documents identified that are relevant for assessing the protectability of the utility model. On the basis of the search results, it is easier to assess what the prospects are of an enforcement of one’s own claims vis-à-vis third parties or of a defence of the IP right against attacks by others. In view of this, the search pursuant to section 7 of the Utility Model Act is an important part of the system of utility model protection.
Last year, 1,812 effective search requests were received by the DPMA (previous year: 1,895) and, as in the previous year, 1,984 searches were concluded. The DPMA thus reduced the number of pending search procedures in utility model matters further.
Cancellation proceedings are an efficient instrument for subsequently clarifying the protectability of an initially unexamined utility model. After a decrease in the past years, the number of requests for cancellation received in 2020 amounted to 104 and thus increased compared to the previous year (2019: 98).
A utility model can be cancelled upon request only. Anyone can make a cancellation request, the looming risk of an infringement dispute or an individual’s economic interest is not necessary. The request is subject to a fee of 300 euros upon filing. The request for cancellation must contain a sufficient statement of reasons. In particular, any conflicting prior art should be cited in the cancellation request.
While the Utility Model Unit is responsible for the registration of a utility model, the Utility Model Division is responsible for handling the cancellation proceedings and deciding on the cancellation request. The panel of the Utility Model Division consists of three members. A lawyer acts as the chair and two patent examiners responsible for the technical field are reporting and associate judges. Normally, oral proceedings are held. The pandemic affected the year under review as it was only possible to a limited extent to hold oral proceedings from March 2020.
In most cases, utility models are cancelled because the subject matter of a utility model cannot be protected. An invention is protectable if it is new compared to the state of the art and involves an inventive step. The examination can also check for any inadmissible extension of the subject matter of the utility model, a usurpation or whether the subject matter of the utility model has already been protected on the basis of an earlier patent or utility model application.
In the year under review, a total of 118 cancellation proceedings were concluded.