The Patent Application - An Important Step

Congratulations! You have made an invention from which you hope to achieve economic success. With a patent application, you can usually protect your intellectual property for up to 20 years (sometimes even longer). This enables you either to earn money by granting licenses or to start your own business based on the invention. "The patent system added the fuel of financial interest to the fire of inventiveness" said Abraham Lincoln. We would like to support you in taking your idea far.

Before you go to the Patent Office to file an application for your invention, you should first check whether your invention meets the criteria of the DPMA, the German Patent Trademark Office, or the European Patent Office (EPO).

The invention you want to patent must be new. The device or procedure that you wish to have patented may not be derived in an obvious way from the current state of the art, i.e. it must be "inventive". The current state of the art is everything that has already been published on this particular subject, whether as written and published document, exhibited as invention at a trade fair or described in speech. All of this is considered “state of the art” – even if published in a foreign language and on the other side of the world, or, as mentioned before, simply shown at an exhibition.

To check if someone has had the same idea as you yet, thorough research is a must.

 

Tip: Check your application before filing it with the DPMA or EPO:

 

• Novelty (worldwide)
• Inventive step (must not be obvious from the state of the art).
• Technicity (only technical inventions can be patented, business ideas or software only in certain cases)
• Commercial applicability (usually no major hurdle)

Patent Application with the German or European Patent Office

You can either apply for the patent in electronic form at the German Patent and Trademark Office in Munich (application fee 40 EUR), or you can apply for it in paper form in Munich or at offices in Jena or Berlin, in which case the fee is 60 EUR. Your invention must be described precisely (see below for more details). The patent application is first examined for form and obvious obstacles. The date of filing is decisive as well if another person wishes to file a patent application for a similar invention. In order to set the actual procedure in motion, however, the request for examination must also be made. The fees at the DPMA for this are 350 EUR. A European patent application is significantly more expensive. After registering, you have a maximum of seven years to apply for the examination, but it is advisable to apply for the examination immediately. It can take two and a half to three years for a patent to be granted. However, within nine to eleven months you will receive a decision from the patent office informing you about your chances. An experienced patent attorney can help you complete the application procedure in due form and time.

Patent Application in Germany, Europe, or Worldwide?

The German Patent and Trademark Office in Munich can only grant you a patent for Germany. Costs for a European-wide patent are significantly higher. We recommend you first apply for the patent in Germany only. If you plan to market your product internationally, you have the so-called "priority right" for twelve months. This means you can file the European or international (PCT) patent application within twelve months. Nevertheless, the filing date with the Patent Office in Germany is considered the reference date (priority date). If you have filed the request for examination at the same time as the patent application, you will know in good time what the German Patent Office has to say about your chances. Then you can still apply for your patent in other countries. Let us advise you individually on the right strategy for your purpose.

Register a Patent for Europe

For later marketing in Europe, you can apply for the patent at the European Patent Office in Munich. The latter conducts a procedure based on the European Patent Convention. This consists of 38 contracting states, including countries not member of the EU, such as the UK, Norway, Switzerland, or Turkey. If the European Patent Office grants a patent, it becomes a protective right according to the respective national provisions of the contracting states. You can also select in which states you want to apply for the patent.

Patent Application for Other Countries

There is no international patent. You can apply to the DPMA in Munich for a patent under the Patent Cooperation Treaty (PCT). The application is forwarded to the World Intellectual Property Organization (WIPO). The first research phase takes place on an international level. However then, separate procedures are carried out in the individual countries in which you want to apply for a patent, and eventually national patents are granted separately for each case. At this stage, 152 states have signed the PCT. An application is often granted faster when participating in the Global Patent Prosecution Highway.

Trade Secrets and Disclosure at the Patent Office

Would you like to set up a company whose business idea includes a technical invention that you want to patent? Then don't go public with the details too soon. This is because your statements or publications are also considered "prior art", which can make your patent application more difficult. Moreover, imitators could copy your invention before you hold the patent, or have applied for it. The patent office will protect your secret for 18 months after filing the application. Your patent application will then appear in the DPMA register. The Patent Office will publish its application filing irrespective of whether you have already filed an examination request or not. A deposited application will ascertain that no one can obtain a patent on your invention now.

The Patent Application - Formal

The patent application consists of several parts:

Description: Here the invention is revealed as precisely as possible.

Claims: These express what exactly the patent description shall protect. In particular, claim 1 contains all the features of the invention that absolutely must be present. Additional features that may be, but do not have to be, are in the subordinate claims. The patent claims should be drafted with special attention, because if too many features are disclosed in the patent claims, then the scope of protection of the patent is very small. Patent claims or patents with too narrow a scope of protection may then be easily circumvented. To check whether patent infringement has occurred, one takes the patent claims and "reads them" on the object suspected of infringing the patent. If all features of the patent claim can be found in the infringing subject/ plagiarism, a patent infringement exists.

Drawings: Besides the description, a patent application shall also contain a description of the figures explaining the content, features and functions of any enclosed drawings. Particularly preferred forms of the invention should also be presented here as well.

Summary: The summary should not be longer than 1500 characters. When filing the application, an inventor should be designated. Foreign applicants are obliged to consult a lawyer if they wish to apply for a patent. However, the support of an experienced patent attorney is advisable for all those who deal with the patent office.

Grants:

The application of an invention for a patent costs money. Many founders do not have enough funds available at this stage. The German Federal Ministry of Economics and Technology promotes patenting through the WIPANO project. Up to 50 percent of the costs can be refunded, including those for patent attorneys.