A fundamental principle of intellectual property law is that it is beneficial for society as a whole if certain intangible assets are (or can be) subject to state-supported protection so that they are not freely available to everyone without permission and free of charge, but instead form an important basis for market differentiation and even for a separate market for intangible assets, in particular a technology market. For this reason, legislators in most countries around the world have defined various classes of intellectual property rights that are intended to provide this protection and often do so in practice.
Where we are legally “at home”
OUR CURRENT LEGAL PROTECTION SPECTRUM
These classes of intellectual property rights include, in particular, invention (utilitiy) patents and utility models for the protection of technical inventions, trademarks and design protection rights.
In addition to acquiring and maintaining the intellectual property rights themselves, it is also important to use them effectively as instruments of market competition and to deal professionally with any risks that may arise from the intellectual property rights of third parties. Here too, a solid knowledge of the relevant legal basis is always an important prerequisite for an optimal approach.
In the field of industrial property protection, the term “patent” is generally understood to mean a so-called invention or utility patent. This is an intellectual property right with which a technical invention can be protected against unauthorized use by third parties for a limited period of time, typically a maximum of 20 years.
The term “invention” is not defined conclusively by law. Rather, the meaning of the term has developed over time, primarily through case law. In essence, an invention is a solution to a technical problem by technical means.
An important special feature of patent protection is that it not only provides protection against a more or less identical reproduction of a specific implementation of an invention by unauthorized parties, but that inventions can typically be protected rather as more general technical concepts, so that protection can be achieved that covers a wide variety of technical implementations of the same concept protected by the patent. Patent protection is therefore particularly powerful among all types of intellectual property rights.
While patents and utility models already have a protective effect due to their publication (passive effect), so that other market participants can be aware of them and can respect their scope of protection, this is not always the case in reality.
It may then be necessary to actively enforce the protective effect against an infringer, whether initially out of court or ultimately through a patent infringement action. In many cases, however, the alleged infringer will not only attempt to argue against an existing infringement of intellectual property rights, but will also initiate proceedings directed against the validity of the intellectual property right patent before a competent Patent- and Trademark Office (PTO) or court.
Patent litigation proceedings therefore usually involve both an infringement dispute and a dispute about validity, whether in opposition proceedings before a PTO or in court proceedings, such as an action for revocation. Validity proceedings can also be initiated independently of an infringement dispute.
In some countries, particularly in Germany, the legal relationship between the employer and the employee acting as inventor with regard to so-called service inventions is not (only) regulated by contract, but even by law, for example in the German law on employee inventions (also known as the “Arbeitnehmererfindungsgesetz” or “ArbnErfG” for short).
Designs (or, equivalently, ‘Geschmacksmuster’ or sometimes also ‘design patents’) are intellectual property rights that grant their owner an exclusive right to use an aesthetic appearance (shape, color, form) for certain goods. Unlike patents (i.e., invention patents), this is not about the protection of a technical teaching in the most comprehensive, often abstract way possible, but about the protection of concrete forms of appearance that are not determined by technical requirements or boundary conditions.
Alongside patents and designs, trademarks, commercial designations and indications of geographical origin represent a further independent class of property rights and serve to identify the goods and/or services of one provider in distinction to those of other providers.
Signs that provide such an operational indication of origin for the claimed products/services and are not subject to any other obstacles to protection are eligible for protection as a trademark, commercial designation or indication of geographical origin, as the case may be. Signs eligible for protection can be, for example, individual words, word combinations, word/image combinations, pure images, but also abstract colors, holograms, multimedia signs and sounds.
In many cases, it is not sufficient from a business perspective to simply have your own IP portfolio and deal with third-party IP rights, for example by developing workarounds or initiating validity proceedings such as oppositions or even nullity actions.
Particularly in technology-driven sectors such as the high-tech industry, it is often important to obtain as accurate a picture and understanding as possible of a specific IP position or situation. This is where the term “IP due diligence” comes into play.
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