Patents / Utility models

Why do I recommend you to apply for a patent or a utility model?

The aim of a patent application or utility model application is to protect innovative products, processes and inventions - i.e. your intellectual property - from unwanted imitation. Just as you lock your own car carefully and protect it against theft, you should secure your innovations with patent or utility model protection.

In addition, a patent or utility model offers competitive advantages because it gives you a monopoly. In particular, even the filing of a patent in your favor creates uncertainty among your competitors, as they do not know how broad the protection your patent will ultimately achieve will be.

As soon as you are the proprietor of a patent or utility model, you have the option of selling it or awarding licenses. The profit brought in by the patent or utility model can make a significant contribution to the growth of your company and serve further expansion or refinancing. In addition, the number of patents or utility models is an indicator of your company's innovative strength.

Products labeled as patented or protected by utility model are often sold better because they evoke positive ideas about the quality and innovation of your product.

Patent application or rather a utility model application?

Patents and utility models have one goal above all - the protection of your intellectual property. However, there are differences between the two property rights, some of which are mentioned below.

The utility model is "the quick property right". It can be entered in the register just a few weeks after registration (Ø 4.3 months at the German Patent and Trademark Office (DPMA)) if the submitted documents comply with the provisions of the Utility Model Act and the registration fee has been received on time. On the other hand, the duration of the procedure for granting a patent from the filing of the examination application to the grant is 3.1 years on average. The time difference arises from the fact that the subject of the utility model application is not checked for novelty, inventive step and industrial applicability. The utility model is therefore an unexamined right. It is uncertain whether claims against third parties can be successfully enforced from the registered but unexamined utility model.

Furthermore, a utility model can only be used to protect device inventions, but not process inventions (compare § 2 No. 3 GebrMG). In the broadest sense, devices are to be understood as physical objects. It is not possible to apply for a utility model for maufacturing, working or application processes.

A great practical difference between the utility model and the patent also lies in the different definition of the state of the art, which is decisive for the assessment of the novelty and the inventive step or activity. Whereas in principle everything is to be counted as prior art in the case of a patent, namely all knowledge which has been made available to the public by written or oral description, by use or in any other way before the date relevant for the priority of the application, this does not apply without restriction to the utility model.

In utility model law, for example, oral descriptions of the invention and obvious prior uses outside of Germany, are not considered to be state of the art.

Likewise, a description or use of the invention made within six months prior to the date of priority for the application will not be considered if it is based on the elaboration of the applicant or his legal predecessor.

Finally, no post-published applications are to be considered as prior art in utility model law.

In patent law, post-published prior art is understood to be national, European or international applications designating the Federal Republic of Germany or with DPMA as Office of Designation, the date of filing of which is prior to the filing date or priority date of the application to be examined, but which have not yet been published on the filing date of the application to be examined.

Another difference between the utility model and the patent is the shorter term of protection of ten years from the filing date for the utility model. A patent offers protection for up to twenty years.

In addition, the official fees for a utility model are slightly lower than for a patent.

Furthermore, there are no further costs for office actions and their response, since the utility model is not checked by the Patent Office with regard to novelty, inventive step and industrial applicability (see above).

With this in mind, I would be happy to explore with you which of the two industrial property rights is more useful for your purpose. Please feel free to contact me.