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Intellectual Property

The term "industrial legal protection" includes everything that serves to protect the commercially usable intellectual performance and the interests associated with it. In principle, anyone can provide such services, no matter in which area, so that the fundamental question arises as to how to protect them. To do this, you need to know which protection options are available for the respective purpose.

Classification of commercial legal protection

Intellectual property for what?

On what basis are property rights granted?

computer software

Classification of commercial legal protection

Einteilung des gewerblichen Rechtsschutzes

Commercial legal protection generally includes industrial property rights, labeling protection and competition protection. In the case of industrial property rights, there is a division into technical property rights and aesthetic property rights. Technical property rights provide a lesson in technical action as well as instructions on how a person of average skill must proceed in order to solve a specific task. This includes the patent and the utility model.

An aesthetic protective right is the registered design, which protects the color and shape of two- or three-dimensional products that are intended and suitable for stimulating the human aesthetic sense of form conveyed by the eye. It does not contain any technical teaching on how something should be done, but shows, for example, a finished design or layout.

All signs, in particular words including personal names, illustrations, letters, numbers, audio signals, three-dimensional designs including the shape of a product or its packaging and other presentations including colors and color combinations can be protected as trademarks that are suitable for goods or services of a company by those distinguish from other companies.

While the aforementioned property rights have a specific registration or granting procedure, and thus registration with an authority, is common, the copyright, which comes close to the design patent, always arises from the first alienation of the work by the author. Copyright is the property-like right of the author to his individual intellectual work. The intellectual work can consist of the content, the inner or outer form of the work. Examples of copyrights are musical compositions, novels, paintings, photographs, but also data processing programs.

The technical protection rights (patent and utility model), the design patent, the trademark and the identification rights fundamentally grant an exclusive right of use. In other words, any third party is prohibited from using these rights without the consent of the right holder. The situation is different with copyright. This is fundamentally protected against any reproduction and further distribution. However, if someone else has created the object himself and can also prove this, the protection from aesthetic property rights (design patent and trademark) does not extend to this creation. Finally, commercial legal protection also includes protection of competition. This is where all the regulations are located that serve to maintain and monitor competition and thus the social market economy.

Intellectual property for what?

Schutzrechte wozu?

The question arises as to why these protective rights are intended at all. In 2017, over 300,000 patents were registered with the European Patent Office. If all of these applications only partially lead to property rights, the question arises as to why those seeking protection are looking for this protection. There are several reasons for this:


  • In Germany and in many other countries, there is a basic freedom of imitation, as long as there are no anti-competitive circumstances. This means that without legal protection, basically everything can be imitated, no matter what investments were required for a development. The UWG (law against unfair competition) grants a certain protection against slavish imitation, but collections in the fashion sector, for example, are no longer protected by the UWG after one season and can then be thrown onto the market cheaply from third and emerging countries. The UWG applies, for example, when extreme price undercutting occurs, reputation exploitation or a reference to the reputation of an established brand takes place. In principle, however, the UWG is an unreliable and difficult-to-use tool for protection, so that the registered or checked property rights provide better protection.

  • Often an individual has an idea and would like to protect himself against imitators with intellectual property rights. This means that he can disclose the content of his intellectual property rights somewhat more safely and assert these rights in the event of misuse.

  • When founding a new company, property rights can serve as proof of the company's existing ability to innovate and perhaps convince a venture capitalist of the idea.

  • The reference to a property right can be effective in advertising, since the traffic assumes that the protected goods are simply better.

On what basis are property rights granted?

Auf wlcher Grundlage werdn Schutzrechte erteilt

Ultimately, the granting of a protective right is a quasi-contract between the person seeking protection and the public or the state. In the case of an invention, an inventor must, with the filing, disclose his invention in such a way that a person of ordinary skill in the art can carry it out. This gives the public access to ideas that might otherwise never have become public. As a reward for disclosing his ideas and not keeping them for himself as know-how, the inventor receives a time-limited monopoly that gives him the opportunity to exploit his idea alone for this period of time and to skim off his inventor's fee. This in turn stimulates other inventors to further develop or work around the published technology, which can be better than the original invention, open up further possibilities and thus promote competition for their part. Without knowledge of the preceding invention, this development might not have taken place, especially in countries whose economic situation depends on highly developed technologies. In summary, by granting intellectual property rights, the state promotes the disclosure of ideas to promote competition.

computer software


A problem area in itself is the protection offered by computer software. One possibility is copyright. According to § 2 Abs. 1 UrhG data processing programs are copyrightable as works. However, the problem begins with the concept of the work. Due to the often repeated use of well-known flow patterns in programs, case law has placed high demands on the existence of a work that can be protected by copyright, so that only a few programs can be protected. This protection usually only affects the source code. In this respect, it can be assumed that around 95% of computer programs, e.g. Currently not eligible for copyright protection.

The other possibility of protection are technical property rights. However, according to § 1 PatG, patent law does not grant any protection to programs for data processing systems as such. This raises the problem of how the software is now protected. Recent case law shows that at least a certain technical context is sufficient for computer programs to be protectable in the area of patent law. Technicality is currently the main criterion for differentiation. A technical reference is sufficient. An example of the broad understanding, at least of the European Patent Office, is an interactive shopping cart for the Internet that only the user can influence.

Applications that are limited to a mathematical method, instructions for intellectual activities or the reproduction of information are clearly not eligible for protection. A program that deals with the correction of Arabic characters, for example, which have different character forms depending on their position in the word, cannot be protected due to a lack of technicality. On the other hand, despite interactive programming, a program for creating a work process for a machine that works independently after the program has been created can be protectable.

In summary, there must be a technical reference within the invention consisting of a problem and a solution. A newly constructed computer or a program with a technical connection are in principle patentable provided that they also meet the other requirements to be placed on patentability. However, there is a difference in the practice of the German and European Patent Offices. Software inventions are more likely to be patented by the European Patent Office, even if they are not very technical.

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