How are patents enforced worldwide

Enforce patent rights

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Please note that the German Patent and Trademark Office is not authorized to provide legal advice. The information below cannot therefore replace legal advice, but rather serve to provide you with a rough and non-exhaustive overview of the options available to you.

How can you protect yourself against patent infringement?

The granted patent is an exclusive right. This means that other people are prohibited, for example, from producing and / or offering your invention without your consent (Section 9 PatG). As the patent owner, it is your responsibility to defend the granted patent against imitators.
Take action as early as possible. Make the infringers' work as difficult as possible. Monitor the market and competition to find patent infringements. Professional providers of research services, for example the patent information centers, offer assistance here.

The enforcement of industrial property rights requires extensive legal knowledge. It is therefore advisable in most cases to seek legal help.

  • You can find lawyers with specialist knowledge of commercial legal protection (specialist lawyers for commercial legal protection) in your region via the bar associations.
  • You can find patent attorneys using a nationwide patent attorney search service provided by the Chamber of Patent Attorneys.

Our tip: At trade fairs in particular, it happens again and again that competitors apparently infringe patents. Therefore, prepare yourself especially for trade fairs. Keep all the necessary patent documents to bring about a injunction ready. Try to document the patent infringement for possible legal disputes, for example take photos and secure the competitor's catalogs.


How can you enforce your patent?

You have the following options to enforce your patent law: patent infringement suit, injunction and / or application for border seizure. In addition, patent infringement may be punishable under certain circumstances.

You can primarily pursue an infringement of property rights through civil law, i.e. you bring a patent infringement suit at the regional courts (Section 142a PatG).
Please note that a lawyer is required before the regional courts. So you have to hire a lawyer to enforce your claims in court.

For example, you can assert the following claims in patent infringement proceedings:

Legal action can often take some time. At the same time, an injunction offers interim legal protection.
Danger: If an injunction proves to be unjustified from the start, the opponent can assert a claim for damages against the applicant.

  • Request for border seizure

To prevent counterfeit or counterfeit products from reaching the European market, you can submit an application for border seizure (Section 142a PatG) to the customs authorities.
Danger: If the seizure proves to be unjustified from the start, you may have to compensate for the damage caused by the unjustified seizure.

An intentional infringement of property rights is generally punishable, but is usually only prosecuted upon application (Section 142 PatG).


How can you take action against third-party patents?

You discover that third party patents infringe your patent. You can either file an objection or an action for annulment.

Within nine months After the grant of a patent has been published, you can object (Section 59 (1) sentence 1 PatG) against the patent.
With the opposition, reasons can be given that speak against a lawful grant of the patent. In the opposition proceedings, a fee will be charged to check again whether the necessary requirements for the grant or maintenance of the patent are missing.
After examining the opposition, the patent can be maintained, limited, or revoked. The objection procedure ends with an objection decision.

are more than nine months After the patent was published, and no opposition proceedings are pending, you have the option of filing an action for nullity in accordance with Section 81 (2) of the Patent Act.

The successful nullity action, like the opposition, leads to the revocation of the patent. The owner of the property rights retroactively loses all legal positions previously based on the registration. Grounds for invalidity are essentially lack of patentability, lack of feasibility or the unlawful removal of the invention.

An action for annulment is filed with the Federal Patent Court. The second and final appellate instance is the Federal Court of Justice. An action for annulment can be initiated by any third party according to Section 81 PatG. The subject of the action can be any patent that is to be declared null and void on German territory.


Case study ballpoint pen

Using the example of a ballpoint pen that never has to be refilled, we will show you what you can do if problems arise from a third party:

  • Case 1: You learn that others are copying your patent
  • Case 2: You want to challenge the patents of others because you believe that your patent rights are being restricted as a result

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Image: iStock.com/eventyfour

Status: 08/10/2019