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PATENT COMPENDIUM

requirements

Under what conditions are property rights granted? It goes without saying that the privilege of a technical property right is subject to certain requirements that must be met in order for it to be legally valid. In the case of a patent (Section 1 PatG) and/or utility model (Section 1 GebrMG), the requirements are as follows: the protective right must be new, based on an inventive step and be commercially applicable. These terms are explained below:

novelty

Special achievement

assessment criteria for one's own performance

Unity of Invention

novelty

Neuheit

The novelty is defined in § 3 PatG: "An invention is considered new if it does not belong to the state of the art. The state of the art includes all knowledge that was made available to the public before the date relevant for the priority of the application through written or oral description, through use or in any other way."

Patent law thus defines the absolute concept of novelty. In principle, an application is opposed to anything that has been published anywhere in the world before the filing date. An invention is thus anticipated in a way that is detrimental to novelty if the content of the application can be inferred from a single prior publication. Merely telling someone else about an invention as a disclosure of the inventive idea prior to the filing date is novelty-damaging, unless confidentiality was agreed or can be assumed based on the circumstances. Any presentation or exhibition is fundamentally anti-novelty. The first and most important principle for everyone who has to do with intellectual property rights is:

REGISTER FIRST, THEN TALK!

 

A specialty can be found in patent law. The patent application is only published (disclosed) after 18 months.

Special achievement

Besonere Leistung

A special service is also a prerequisite for the legal validity of property rights. In other words, the performance must not have been obvious to the average professional or designer. After all, the free further development of technology should not be impeded. It is therefore not sufficient that the subject matter of a protective right is merely new compared to the known state of the art. Namely, if this new object can easily be found by the average skilled person, the achievement is not based on an inventive step. This space between the state of the art and the invention is kept free in order not to impede the normal further development of the technology.

How can it be determined whether a new achievement is so different from the previously known that it constitutes a special achievement, i.e. an inventive step?

For this purpose, an average specialist or an average designer is defined, who is usually entrusted with solving the task at hand or with creating the new design. This fictitious person has average knowledge in their field and is also informed about developments in neighboring fields. Apart from that, it has access to the entire state of the art. If the solution was obvious to this average specialist, there is no special achievement.

performance assessment criteria

Beurteilungskriterien der Leistung

For further delimitation, so-called auxiliary considerations have been created by case law, which may indicate that an invention is based on a special achievement that is to be protected. These points can be helpful for any inventor to assess his own performance. Examples:

  • the invention eliminates or overcomes technical difficulties

  • individual inventive features have considerable value, for example as part of increased cost savings

  • the invention solves a long felt need

  • the product is a bulk product, so small steps bring huge benefits

  • In order to arrive at the invention, the person skilled in the art had to take several intellectual steps, starting from the prior art

  • the invention breaks new ground that was not to be expected

  • the juxtaposed features interact with each other and produce a synergistic effect

  • the invention brings unexpected benefits

  • the invention overcomes the prejudices of the professional world

  • the closest prior art is many years old and yet nobody has been able to find a solution to the problem in the meantime

Unity of Invention

Einheitlichkeit der Erfindung

Only one invention or a group of inventions that realize a single general inventive idea may be described in each application (section 34 (5) of the Patent Act). The requirement of unity of invention is met if there is a technical connection between the inventions, which is expressed in one or more identical or corresponding special technical features.

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