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Dres. Fitzner & Partner
Industrial Property Protection
1. Patent Attorneys and Attorneys at Law: Natural science and
law in one full service law firm.
Industrial property law is at the borderline between technology and law, that is to say that the attorney, working for clients in this area, must have substantial technological and legal knowledge. Only with this combination, an efficient protection of innovations against imitations can be attained.
As attorneys at law and patent attorneys we are competent in the respective laws as well as in natural science and technology. We are happy to support you and to give you advice for the successful exploitation of your valuable inventions, to inform you about trends or new developments and to assist you in the strategical buildup of your portfolio of intellectual property rights.
2. The subjects of the industrial property rights
The laws of industrial property, of competition and of copyright belong to the laws of economics and business and therefore are mainly classified as part of the private law. The following laws are considered to be part of the industrial property rights:
In particular:
a) Patents and Utility Models
For industrially usable inventions it is possible to apply for a patent or a utility model. The subject may be technical inventions, i.e. the results of a creative process in the technical fields. The results of intellectual work in other fields - literature, music, performing arts, mathematics, mercantile methods or commercial or business methods - cannot be protected by a patent or a utility model. Those intellectual work products may be protected by the copyright law.
The second important requirement of the patent law and the utility model law is their focus on technology and to commercial use. That means that only inventions, which comprise a novel technical feature and which are industrially usable, can be protected. Accordingly non-technical results of creative work cannot be protected by eithera patent or by a utility model.
Furthermore, a granted patent or utility model gives the inventor only the right to exclude others from the commercial exploitation of the invention, while other, non-commercial uses, are open to everybody.
A patent might be considered to be the "big brother" of the utility model. The maximum term of protection for a patent 20 years, while the duration of the utility model is 10 years. A granted intellectual property right conveys to the owner only the right to exclude other third parties from the commercial use of the protected invention while non-commercial uses are open to everyone.
b) Trademarks
According to the Trademark law, the following can be protected: reproductions of a product, letters, numbers, auditory signs, three-dimensional appearances including the packaging of a product, other "getups" including colours and combinations of colours. According to the trademark law, the nature of a trademark is defined by its distinctiveness", i.e. by the ability to differentiate goods and services of an enterprise from those of other enterprises.
The protection by a trademark is not exclusively connected to the application and registration. Trademark protection can also come into existence with the use of a sign insofar as this is generally recognized by the applicable user community and therefore is notoriously aknown to same.
For the so-called business-signs, i.e. the company names, company logos or or work-titles, protection also starts with the commencement of commercial use
Company names are those signs, which are used in the ordinary course of business as a name, firm or as a special identification of a business principle of an enterprise, i.e. when it is used in a name function. Insofar as the business-sign of a company is by its nature non-distinctive , protection only comes into existence through general recognition by the relevant customer community.
c) Design Model Law
The design model law has similarities to the copyright law. Art designs can also be protected by a design model insofar as the requirements of the design model law are met. The design model law has in common with the trademark law, the patent law and the utility model law the fact that it is directed to the protection of an commercial activities. With the copyright law the design model law is connected by the protection of an individual, aesthetic design. According to the design model law, the protection of a design model is considered for an industrial design model, which has an aesthetic content and which is new and has an individual character. Design models are planar, two-dimensional designs or three-dimensional objects, such as a vehicle, a bottle etc. The design model must have commercial utility.
The design model only protects the industrial, not themere art work. If therefore an aesthetic design is only repeatable in the field of arts, for example as stage set, the protection by a design model is excluded. The model must also have a particular aesthetical content. This means that it must have a visible effect on the form and the colour sensing of human beings.
The protection via a design model is obtained by the application of the design at the German Patent and Trademark Office and the deposition of a sample and a two-dimensional photographiccopy of a design model. The publication of the applications follows thereafter.
d) Copyright law
Subject of the copyright law is the protection of the intellectual product visible to and conceivable for the public. The author should participate in an appropriate manner in the commercial utilization of his creation. The copyright law protects the works of literature, science and art. The protection begins by law as soon as a tangible design is present and the requirements of the law are met.
This does not depend on the publication or the release of the creation for which freedom of form exists.
The so called performance protection rights have to be distinguished from the copyright law. While the subject of the copyright law are the creative efforts of a creative person , subject of the related performance protection rights are other sorts of efforts, which do not reach the intensity of creativity as in the copyright reserved "creations" (such as photographs). In addition, the law also protects those, who do not perform or execute directly themselves, but who contribute with their efforts in a creative manner to the performance or presentation.
Computer programs are protected by the copyright law as well; they belong to the field of science and they are- depending on the fact if there is a linguistic or graphical exposition-as written composition or exposition of scientific or technical sort accessible to the copyright protection.
e) Competition Law
The law on competition comprises the law against unfair competition (UWG) and the law against limitations on competition(GWB). Employees, suppliers, competitors are intended to be protected by these laws against improper behaviour. In addition, the market-based competition shall be secured in the interest of the general public.
f) Employed Inventors Law
The inventions made by the employees also belong to the innovations of a company. In Germany, they are called "inventions of employees". The respective employed-inventors law is a speciality of the German law.
Employers and employees have to meet a variety of obligations in this sector, some of which are described hereinafter.
If an employee has made an invention, he is obliged to report his invention to his employer. The invention report must meet certain requirements. For example a suggestion for improvement cannot be interpreted as an invention. The employer has to acknowledge the receipt of the invention report without undue delay. The latter has to decide, if he wants to claim the rights to the invention and therafter to file a application in the companies' own name.Within a term of four months the can claim the service invention of his employee without limitation. In the case of a commercial use after grant the employed inventor is entitled to receive an adequate inventor's compensation.
g) Procedural Law and General Civil Law
Concerning the general civil law, we advise mainly in the area of contract law, in the fields of the industrial property protection in particular concerning the drafting and negotiation of licence agreements
In addition, we advise in the fields of web law, in particular including the rights of E-Commerce, but also the rights of domain names.
More information you can find here.
Industrial property law is at the borderline between technology and law, that is to say that the attorney, working for clients in this area, must have substantial technological and legal knowledge. Only with this combination, an efficient protection of innovations against imitations can be attained.
As attorneys at law and patent attorneys we are competent in the respective laws as well as in natural science and technology. We are happy to support you and to give you advice for the successful exploitation of your valuable inventions, to inform you about trends or new developments and to assist you in the strategical buildup of your portfolio of intellectual property rights.
2. The subjects of the industrial property rights
The laws of industrial property, of competition and of copyright belong to the laws of economics and business and therefore are mainly classified as part of the private law. The following laws are considered to be part of the industrial property rights:
- Patent Law
- Trademark Law
- Design Model Law
- Semiconductor Protection Law
- Plant Variety Protection Law
- if protection for an industrially usable idea is sought: in this case, in particular a patent, an utility model or- in case that a protection for a particular aesthetical design is sought-, a design model come into consideration.
- if protection for a logo or other symbol of appearance in the conduct of business, insofar as this is connected with a special service or product is sought: in this case, a trademark should considered.
- if the ordinary course of business is impeded by unfair practices of other involved parties: in this case, UWG and GWG are applicable.
- if someone´s intellectual work is affected: In this case the copyright law is effective.
In particular:
a) Patents and Utility Models
For industrially usable inventions it is possible to apply for a patent or a utility model. The subject may be technical inventions, i.e. the results of a creative process in the technical fields. The results of intellectual work in other fields - literature, music, performing arts, mathematics, mercantile methods or commercial or business methods - cannot be protected by a patent or a utility model. Those intellectual work products may be protected by the copyright law.
The second important requirement of the patent law and the utility model law is their focus on technology and to commercial use. That means that only inventions, which comprise a novel technical feature and which are industrially usable, can be protected. Accordingly non-technical results of creative work cannot be protected by eithera patent or by a utility model.
Furthermore, a granted patent or utility model gives the inventor only the right to exclude others from the commercial exploitation of the invention, while other, non-commercial uses, are open to everybody.
A patent might be considered to be the "big brother" of the utility model. The maximum term of protection for a patent 20 years, while the duration of the utility model is 10 years. A granted intellectual property right conveys to the owner only the right to exclude other third parties from the commercial use of the protected invention while non-commercial uses are open to everyone.
b) Trademarks
According to the Trademark law, the following can be protected: reproductions of a product, letters, numbers, auditory signs, three-dimensional appearances including the packaging of a product, other "getups" including colours and combinations of colours. According to the trademark law, the nature of a trademark is defined by its distinctiveness", i.e. by the ability to differentiate goods and services of an enterprise from those of other enterprises.
The protection by a trademark is not exclusively connected to the application and registration. Trademark protection can also come into existence with the use of a sign insofar as this is generally recognized by the applicable user community and therefore is notoriously aknown to same.
For the so-called business-signs, i.e. the company names, company logos or or work-titles, protection also starts with the commencement of commercial use
Company names are those signs, which are used in the ordinary course of business as a name, firm or as a special identification of a business principle of an enterprise, i.e. when it is used in a name function. Insofar as the business-sign of a company is by its nature non-distinctive , protection only comes into existence through general recognition by the relevant customer community.
c) Design Model Law
The design model law has similarities to the copyright law. Art designs can also be protected by a design model insofar as the requirements of the design model law are met. The design model law has in common with the trademark law, the patent law and the utility model law the fact that it is directed to the protection of an commercial activities. With the copyright law the design model law is connected by the protection of an individual, aesthetic design. According to the design model law, the protection of a design model is considered for an industrial design model, which has an aesthetic content and which is new and has an individual character. Design models are planar, two-dimensional designs or three-dimensional objects, such as a vehicle, a bottle etc. The design model must have commercial utility.
The design model only protects the industrial, not themere art work. If therefore an aesthetic design is only repeatable in the field of arts, for example as stage set, the protection by a design model is excluded. The model must also have a particular aesthetical content. This means that it must have a visible effect on the form and the colour sensing of human beings.
The protection via a design model is obtained by the application of the design at the German Patent and Trademark Office and the deposition of a sample and a two-dimensional photographiccopy of a design model. The publication of the applications follows thereafter.
d) Copyright law
Subject of the copyright law is the protection of the intellectual product visible to and conceivable for the public. The author should participate in an appropriate manner in the commercial utilization of his creation. The copyright law protects the works of literature, science and art. The protection begins by law as soon as a tangible design is present and the requirements of the law are met.
This does not depend on the publication or the release of the creation for which freedom of form exists.
The so called performance protection rights have to be distinguished from the copyright law. While the subject of the copyright law are the creative efforts of a creative person , subject of the related performance protection rights are other sorts of efforts, which do not reach the intensity of creativity as in the copyright reserved "creations" (such as photographs). In addition, the law also protects those, who do not perform or execute directly themselves, but who contribute with their efforts in a creative manner to the performance or presentation.
Computer programs are protected by the copyright law as well; they belong to the field of science and they are- depending on the fact if there is a linguistic or graphical exposition-as written composition or exposition of scientific or technical sort accessible to the copyright protection.
e) Competition Law
The law on competition comprises the law against unfair competition (UWG) and the law against limitations on competition(GWB). Employees, suppliers, competitors are intended to be protected by these laws against improper behaviour. In addition, the market-based competition shall be secured in the interest of the general public.
f) Employed Inventors Law
The inventions made by the employees also belong to the innovations of a company. In Germany, they are called "inventions of employees". The respective employed-inventors law is a speciality of the German law.
Employers and employees have to meet a variety of obligations in this sector, some of which are described hereinafter.
If an employee has made an invention, he is obliged to report his invention to his employer. The invention report must meet certain requirements. For example a suggestion for improvement cannot be interpreted as an invention. The employer has to acknowledge the receipt of the invention report without undue delay. The latter has to decide, if he wants to claim the rights to the invention and therafter to file a application in the companies' own name.Within a term of four months the can claim the service invention of his employee without limitation. In the case of a commercial use after grant the employed inventor is entitled to receive an adequate inventor's compensation.
g) Procedural Law and General Civil Law
Concerning the general civil law, we advise mainly in the area of contract law, in the fields of the industrial property protection in particular concerning the drafting and negotiation of licence agreements
In addition, we advise in the fields of web law, in particular including the rights of E-Commerce, but also the rights of domain names.
More information you can find here.