Applying for a Patent in Germany

German Patent and Trademark Office

This year, Germany shot to the top of Bloomberg’s rankings for the most innovative nation worldwide, breaking South Korea’s six-year winning streak. Germany is a thriving European center for innovation where patent activity, high-tech density, and value-added manufacturing are on the rise. The country is particularly renowned for its modern car technology. It has designed award-winning high-speed roadways, digitally networked mobility, and some of the most advanced driverless vehicles. In fact, German patents for driverless cars have doubled in the last five years, and its top three patent areas in 2017 were Transport (11,000+ patents), Electrical Machinery (7,000+ patents), and Mechanical Elements (6,000+ patents). If you wish to join the trend and patent your innovation in Germany, here is a walk-through of the German patent application process.

Filing Methods

There are three different filing methods you can pursue to obtain a German patent:

1. If you’re planning on protecting your IP in a wide variety of countries, you’ll probably want to start by filing an international patent application under the Patent Cooperation Treaty (PCT). This would give you 30 or 31 months to enter national-phase filing in any of the 153 PCT member countries, including Germany, which has the 30-month deadline.
2. If you want to protect your IP throughout Europe, you can file a regional application with the European Patent Office (EPO). With this single application you can protect your patent in all EPO member states, including Germany. This is a far simpler and more cost-efficient path than entering national-phase filings in each European country individually.
3. If you plan to make your invention available only in the United States and Germany, it may make more sense to take the direct filing route under the Paris Convention. This would allow you to file first in the United States and then claim that priority date on your application to the German Patent and Trademark Office (DPMA), so long as it’s filed within 12 months of the priority application.

The Filing Process in Germany

It’s important to understand how the filing and examination process works in Germany. Did you know:

• Filing your patent application with the DPMA secures your priority date – but it does not begin the official examination required to grant the patent. In Germany, you must file a request for examination and pay the EUR 350 examination fee to begin this process – and you have up to seven years from the filing date to do so.
• Deferred examination is an interesting strategic tool that many German companies pursue. On one hand, it leaves time to wait for the results of a parallel Euro-PCT or European Patent application. If the European application is not granted with the desired scope, a company can activate its German application (by filing a request for examination and paying the fee) any time in the seven-year period. On the other hand, if the parallel European application is granted with the desired scope, a company can simply allow the German application to lapse. They can also use the seven-year period to conduct market research. If an invention doesn’t look profitable, the company can choose to drop the project and, again, simply let the DPMA application lapse.
• It can take 30 to 36 months for the DPMA to grant a German patent. Once granted, a German patent is good for 20 years so long as its annual fees are paid.
• The DPMA will only grant patents for a “technical invention.” The following subjects are not considered technical inventions and therefore cannot be patented in Germany: a scientific theory; a mathematical method; a scheme, rule or method of performing mental acts, playing games or business methods. It’s important to note that computer apps or ways of presenting information (generally all GUI) are difficult to protect and require specific wording.
• Patent applicants who are not German residents need to arrange local legal representation by an authorized German lawyer or patent attorney.

Germany’s Language Requirement

Here are some critical language guidelines for foreign applicants:

• If you apply for a patent in Germany via the PCT national-phase or Paris Convention routes, you must provide a German translation of the priority application.
• If you originally filed your PCT or Paris Convention application in English or French, Germany provides a 15-month grace period from the priority filing date to deliver the complete German translation, including all accompanying documentation.
• If the priority application was filed in German, you have 12 months from the time of submission to provide a complete set of documents in German.

Utility Models

For those who seek a very quick and cost-efficient way to obtain IP protection in Germany, there’s the utility model, an option the DPMA has called “the little brother” of the patent. In many ways, utility models offer the same protection as patents. They both give you exclusive rights to use, produce and market your invention, which can cover any subject matter (apart from processes). However, there are several important differences to consider between patents and utility models:

• Utility models are exempt from examination. The upside here is that the process is much faster – IP rights can go into effect in months (upon registration) instead of years. The downside is that if your IP is challenged later, examination will be subsequently carried out and your IP rights could be changed or cancelled.
• Utility models offer a maximum of 10 years’ protection, compared to a patent’s 20-year term.
• A utility model can be filed in parallel to a German patent application. There is no bar to double protection – you can have identical claims for a patent and a utility model.
• A utility model can be branched off from a valid pending patent application (i.e. a direct German filing, a European regional application or a PCT application). Protection for the branched off utility model goes into effect upon registration – regardless of the outcome of the related patent grant procedure.
• You can branch off as many utility models as you like from the same patent application with different claims. This means you can specify individual utility models towards specific infringing products, and you can amend the claims at any time.

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