On 15 October 2008, the Federal Cabinet adopted a bill to simplify and modernise patent law. The Patent Law Modernisation Act improves the legal situation for patent and trade mark applications and simplifies the appeal system.
"With this amendment, we are strengthening Germany as a patent location in the long term. In future, court proceedings will be able to proceed more quickly and patent applications will be simplified. In patent appeal proceedings alone, we expect the duration of proceedings to be halved. The reform benefits the entire economy, which depends on inventions as a raw material of the knowledge society. Effective and efficient legal protection for inventions helps to fully exploit the innovation potential of our economy and create jobs," said Federal Minister of Justice Brigitte Zypries.
The core of the draft law is improvements in the so-called nullity proceedings. In these proceedings, a court examines whether a patent was rightly granted.
- In the first instance before the Federal Patent Court, the court must in future expressly draw the parties' attention to issues that are relevant for the court's decision but have not yet been sufficiently discussed by the parties in their previous submissions to the court. This way, the parties know better what is important to the court and they can focus their further submissions on the essentials. By setting a time limit, the opposing party and the court are protected from surprising new submissions, which in many cases have so far only been presented at the oral hearing. This has often led to a prolongation of the proceedings.
- The appeal procedure before the Federal Supreme Court is also to be faster in the future. The aim is to halve the duration of the proceedings, which currently take more than four years. Up to now, an expert must regularly be appointed in appeal proceedings, which is very time-consuming. After the reform, this will only be necessary in exceptional cases. Under the current procedural law, the appeal in patent revocation proceedings opens a completely new instance; this means that the entire material of the first instance must be heard again. In future, the appeal will focus on reviewing the decision of the first instance for errors, as has proven to be the case in the Code of Civil Procedure. Patent owners, competitors and the public will thus obtain clarity more quickly as to whether the patented invention is protected or not.
The procedure for employee inventions, which account for about 80 per cent of all inventions, is also simplified. The objective of the Employee Inventions Act is to ensure that the invention created in the employment relationship is attributed to the employer and that the employee receives appropriate remuneration for it. Previously, the employer and the employed inventor had to exchange several declarations with different deadlines for this purpose. These formalities have repeatedly led to errors in company practice.
In the future, a so-called presumption of entitlement will apply:
Accordingly, employee inventions are automatically transferred to the employer four months after they are reported if the employer does not release the invention beforehand. "In substance, however, the tried and tested reconciliation of interests remains in place: the employer is basically entitled to the employee's service inventions. In return, the employee receives a claim to remuneration," Zypries explained.
For more information, please visit www.bmj.de/patentrechtsmodernisierung.
Source: Press release of the Press and Public Relations Department of the Federal Ministry of Justice of 15.10.2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
