Cancellation Proceedings - putting utility models to the test
Utility models are registered without examining whether they are eligible for protection. In case of a dispute, cancellation proceedings at the DPMA will clarify whether the registered invention is new and involves an inventive step.
Any person may file a request for the cancellation of a utility model. There is no need for that person to substantiate a particular legal interest. The request is subject to a fee (300 euros) and must be filed in writing together with a statement of reasons. Even though it is no requirement, it is recommendable to be represented by a lawyer or patent attorney since the proceedings can take a lot of time and effort as well as be complicated.
A panel of one lawyer and two patent examiners of the respective technological field decides on the cancellation request. The decisions may be challenged by way of an appeal to the Federal Patent Court.
For utility model cancellation proceedings, the potential costs should be considered. As in civil proceedings, the losing party has to bear the costs including the costs incurred by the opponent.
The ordinary courts are competent for infringement litigation as well as for injunction actions, damages actions and applications for criminal prosecution. IP infringement can thus be prosecuted by way of an action brought before a court or by reporting to the public prosecution office.
Last updated: 8 May 2020