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German Utility Model

A German utility model is like a patent a technical IP right and causes as compared to a patent relatively low costs but is nevertheless, thanks to its flexibility, in some aspects superior to a European or German patent.

The information about utility models is divided into the following sections:

General Information on Utility Models

Thanks to its comparatively low costs a German utility model is an IP right particularly well suited for smaller and medium sized enterprises as well as inventions for which it has not yet been determined whether and how they will be used. The German utility model has a grace period of 6 month for own prior use, thus the German utility model is also well suited for inventions recently published. Of course a German utility model can be filed by claiming a priority of a first filing of a patent application.

In reaction to prior art found after the filing date the claims can be restricted voluntarily based on the disclosure.

Under German law a civil court can not verify the validity of a patent during an infringement proceeding, but a German civil court can verify the validity of a German utility model during enforcement.

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Requirements for protection by a Utility Model

A utility model can essentially only protect technical products, apparatus and substances, as long as they are novel and based on an inventive step, but it cannot protect processes. The utility model is examined by the German Patent and Trademark Office only concerning formal registration requirements. A utility model is not examined with respect to novelty and inventive step.

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Maximum Term of Protection

The maximum term of protection of a German utility model is 10 years. Although a German patent can remain in force for up to 20 years , the average German patent lapses after approximately 11 years due to non-payment of the renewal fee. Accordingly, the shorter term of protection of a German utility model might be less relevant in practise.

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Relevant Prior Art/Grace period

The German Utility Model Act offers a grace period of six months for own publication and prior usage in Germany. Prior usage out of Germany does not constitute prior art for a German utility model, whereas written description in and out of Germany is prior art relevant for the German utility model.

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Protection at Exhibition/Exhibition Priority

Further thereto, the German Utility Model Act provides protection at exhibitions and an exhibition priority, if the invention has been presented on a trade fair up to 6 months before the filing date which was admitted by the German Ministry of Justice in the Federal Law Gazette for providing protection at exhibitions and an exhibition priority.

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Search for Prior Art

Optionally, a search for prior art can be requested by the applicant or any other party at the German Patent and Trademark Office. It is not necessary to file a response to the search report of a utility model or to amend the claims. Optional claim amendments are possible if covered by the disclosure.

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Publication and Postponing Publication

A patent application is published 18 months after filing or priority date. A utility model is generally published after a formal examination by the GPTO, typically a matter of several weeks. As soon as the utility model is published, protection is provided.

The early publication of a utility model could constitute prior art for a further patent application for a development that is based on the subject matter of the utility model. Upon request publication of the utility model can be postponed for up to 15 months beginning from the filing date. However, protection commences with publication of the utility model.

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Branch Off of a Utility Model from an International, European or German Patent Application

A German utility model can be branched off from a pending international, European or German patent application by claiming the filing date or priority date of the first filing. A branch off is possible until up to two months after granting a patent or withdrawing or rejecting the patent application.

Accordingly, a German utility model branch off is well suited to stop infringement activities during grant proceedings in Germany. Furthermore, a German utility model branch off is an alternative to a costly divisional application.

Utility Model Branch off during Grant Proceedings of an international, European or German Patent Application for Stopping Infringement:

As long as a patent is not granted and the application is still examined by the European Patent Office (EPO) or the German Patent and Trademark Office (GPTO), the proprietor of the patent application can neither claim injunction nor damages in Germany. The applicant can only claim “compensation reasonable in the circumstances” against an infringer. Such situation is inappropriate in many practical cases.

However, it is possible to branch off a German utility model from a pending international, European or German patent application in order to claim injunction and damages against an infringer after publishing the German utility model . However, it is advisable to consider the results of the search in order to branch off the German utility model with novel and inventive claims in order to facilitate discussion with the infringer and possible court actions. Under certain circumstances it is possible to request a preliminary injunction against an infringer if the search result is available.

Branch off of a German Utility Model as an Alternative to a Divisional Application:

If the European Patent Office (EPO) or the German Patent and Trademark Office (GPTO) raises a lack of unity objection, it is generally necessary to file a divisional application in order to cover all aspects of the invention. However, such divisional applications can be expensive. Alternatively, a German utility model can branched off for an aspect considered to lack unity by the EPO or GPTO.

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Enforcement of a Utility Model

The validity of a German utility model can be verified during infringement proceedings by a Civil Court unlike to a German patent or German part of a European Patent. Further details concerning infringement can be found in the section Enforcement of a Patent or a Utility Model in Germany.

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Cancelation of a German Utility Model

The German Utility Model Act does neither provide an opposition proceeding nor a nullity action. An invalid utility model can be cancelled by a cancelation proceeding at the German Patent and Trademark Office. The decisions of the German Patent and Trademark Office can be appealed at the Federal Patent Court.

Further thereto, the validity (novelty, inventive step, etc.) of a utility model can be objected during an infringement action.

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Advantages and Disadvantages of a Utility Model compared to a Patent

A German Utility Model provides the following advantages compared to a patent:

  • Low official fees
  • Immediate protection beginning from publication of the utility model
  • Grace period of 6 months for own prior use
  • Exhibition protection and exhibition priority for own presentation on particular trade fairs 6 months before the filing date
  • Prior usage out of the Federal Republic of Germany does not constitute prior art.
  • Alternative to an expensive divisional application
  • The subject matter of a pending international, European or German patent application can be enforced by a utility model branch off.
  • A German utility model can be the last possibility to get protection for an aspect of the invention for which no divisional application can be filed with the EPO.
  • Even after registration and publication of a German utility model it is possible under some circumstances to narrow the claims to an embodiment actually of interest based on the original disclosure of the utility model.

A utility model has the following disadvantages compared to a patent:

  • The maximum term of protection is only 10 years.
  • It is only possible to protect products, apparatus and substances, but not methods.
  • As long as no search has been done, there is a legal uncertainty with respect to the validity and scope of protection of the utility model.
  • If no postponing of publication is requested, a German utility model is published within few weeks and can thus be prior art for the patentability of a further development of the invention.

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