Questions around Patents
Here you will find a selection of frequently asked questions on patent protection
What is a ‘patent claim’?
Patent claims define the scope of protection of your patent. You should therefore draft them very precisely; all technical features to be protected must be exactly named in the claims. You can find examples of patent claims at the end of the "Information for Patent Applicants" leaflet and also in patent documents.
What is the ‘description’ of the invention?
What is the ‘description’ of the invention?
The description is an essential element of the patent application. The description should begin with:
- the title of the invention, which you have indicated in the application form, and
- the technical field to which the invention relates.
The description must indicate and contain:
- the known state of the art,
- the problem underlying the invention (solution not covered by the state of the art),
- the solution of the problem and improvement over the known state of the art (i.e. the invention as such = the means used to solve the technical problem),
- at least one embodiment of the invention,
- the advantages of the invention.
Examples are listed at the end of the "Information for Patent Applicants" leaflet.
If you file the parts of the description at a later date, the filing date will be deferred to the day of receipt of the parts of the description at the DPMA.
What should be considered about drawings as an element of the application documents?
The drawings should allow clear illustration of how the features of the invention interact and highlight the essence of the invention. Photographs are not accepted as a replacement for drawings.
If you have made references to drawings in the application but file the drawings at a later date, the filing date will be deferred to the day of receipt of the drawings at the DPMA.
If you prefer to retain the original filing date, you must declare that no reference to the drawings shall be made. If no such declaration is received, the DPMA will state this fact ex officio.
What must be contained in the abstract of the documents of the patent application?
The abstract must not exceed 1,500 characters and is intended exclusively for technical instruction.
- title of the invention
- comprehensible concise summary of the technical disclosure
- drawing if it is mentioned in the abstract
The abstract may also be filed later (but not later than 15 months after the filing date).
Please see our information leaflet on how to draft the abstract of the patent application prescribed under Section 36 of the Patent Act (in German) for details.
What time limits apply to the procedure before the DPMA?
There are statutory time limits and time limits set by the DPMA.
Statutory time limits (e.g. the three-month period for payment of the filing fee, section 6 (1) of the Patent Costs Act [Patentkostengesetz] or the twelve-month period for claiming an earlier domestic priority, section 40 (1) of the Patent Act [Patentgesetz]) cannot be extended. Failure to observe statutory time limits results in the legal consequences specified in the respective provisions.
The time limits set by the DPMA for responding to official communications are to be at least one month for domestic applicants and two months for applicants having no principal place of business, establishment or residence in Germany (section 18 (1) of the DPMA Ordinance [DPMA-Verordnung]). If sufficient reasons are given, the time limit may be extended once (section 18 (2) of the DPMA Ordinance). Further extensions of the time limit will only be granted if a legitimate interest is substantiated (section 18 (3) sentence 1 of the DPMA Ordinance). The applicant will be informed about the consequences of failure to observe the time limits set by the DPMA when the time limit is set.
What can I do if I have failed to comply with a time limit?
Statutory time limits: In case of failure to comply with statutory time limits, a request for re-establishment of rights under section 123 of the Patent Act may be considered. An admissible and well-founded request for re-establishment of rights remedies all consequences of the failure to observe a time limit.
Time limits set by the DPMA: If the applicant has failed to comply with a time limit set by the DPMA whereupon a decision to refuse the patent application has been issued, the applicant may request further processing of the application under section 123a of the Patent Act within one month from service of the decision. No specific form is required. Within this one-month period, the omitted act must be completed and the required fee for further processing must be paid (no. 313 000 in the Information Concerning Costs, Fees and Expenses, form A 9510.1). In the event that a request for further processing is successful, the legal consequence of non-compliance with the time limit will not ensue.
How is the time limit for submitting a German translation for English or French applications pursuant to Section 35a(2) of the Patent Act calculated?
For applications entirely or partly in English or French, the time limit for submitting a German translation pursuant to Section 35a(2), first sentence, of the Patent Act (Patentgesetz) is twelve months from the date of filing at the DPMA.
If an earlier priority date is claimed for the application rather than the date of filing at the DPMA, the time limit pursuant to Section 35a(2), second sentence, of the Patent Act ends at the latest after the expiry of a period of fifteen months from this priority date. The DPMA interprets this provision to mean that 15 months from the priority date is the relevant maximum period for applications claiming priority.
What effect does an English or French abstract have on the time limits for submitting a German translation pursuant to Section 35a of the Patent Act?
Section 35a of the Patent Act (Patentgesetz) allows submission of a foreign-language application with the DPMA. The application documents which can be entirely or partly in a language other than German in accordance with Section 35a of the Patent Act include the elements of an application mentioned in Section 34(3) of the Patent Act. The abstract pursuant to Section 36 of the Patent Act is not part of the application documents within the meaning of Section 34(3) of the Patent Act. It is therefore not possible to extend the 3-month time limit pursuant to Section 35a(1) of the Patent Act for submission of a German translation at a later date to twelve months in accordance with Section 35a(2), first sentence, of the Patent Act by adding an English or French abstract to an application in a language other than German, English or French.
Why do I need to designate the inventor?
Patent applicant and inventor need not be identical. That is why the applicant must designate the inventor(s) within 15 months of the filing date or the priority date.
Please refer to the " Information for Patent Applicants" leaflet for details.
What is a ‘preliminary examination’ of the application?
Upon receipt at the DPMA, the application will be accorded a filing date. The documents will be examined for compliance with formal requirements ( Secs. 34 to 38 Patent Act [Patentgesetz]). We will also check the application for obvious bars to patentability ( Sec. 42 Patent Act).
The invention will be classified according to the technical field using an internationally recognised, very detailed classification scheme. The classification system applied is the International Patent Classification (IPC). It allows to attribute each invention to a defined class. Following classification, the substantive examination, the actual patent examination, may start.
What is the first publication of the patent application (Offenlegungsschrift)?
When an application is filed at the DPMA, the invention is initially kept secret for 18 months. The examination takes place during that time period (if an examination request has been filed). Even if the examination is not yet concluded, the invention will be published 18 months from the filing date.
For this purpose, the DPMA publishes the Offenlegungsschrift, the first publication of the application. It contains the written presentation of the invention in its original form as submitted on the filing date. The first publication of the application informs the public on possible future patent rights and protects competitors from double developments.
During the period of secrecy, the applicant may decide whether or not they wish to further proceed with the application. They may also withdraw the application before the first publication so that details of their invention will not become available to the public.
The application will also be published if no examination request has been filed. The first publication of the patent application does not yet give the applicant valid industrial property protection or an exclusive right to the invention.
If the patent examination procedure is concluded by the grant of a patent before the expiry of 18 months, the patent specification will immediately be published instead of the Offenlegungsschrift.
What happens during the patent examination procedure?
The patent examination procedure starts only when you have filed a request for the examination of the patent and have paid the request fee (350 euros). A substantive examination of the patentability of your invention under Section 1 of the Patent Act (Patentgesetz) (novelty, industrial application and inventive step) will then be carried out. If your application does not meet the requirements of the Patent Act, it must be refused.
If your invention meets the patentability requirements, the examiner will grant a patent.
A mention of grant will be published in the Patent Gazette (Patentblatt), and a patent specification will be published.
If no notice of opposition to the patent is given, the patent will take effect. The maximum term of protection is 20 years.
Please refer to the Guidelines for the Examination of Patent Applications for more details.
How long does it take to grant a patent?
The patent procedure takes 40 months (status 2021) on average, provided that the examination request has been filed within the initial four months from filing, that the examination fee has been paid and that no request for the extension of a time limit has been filed.
What legal remedies are available?
After the grant of the patent, the DPMA issues the patent specification. Any person may give notice of opposition to the patent grant within nine months of the publication of a patent grant. The opponent may give reasons against the grant of the patent which were not yet known during the examination. In that case, the invention will be re-examined by an examination panel. As the outcome of the examination, the patent will either be revoked or maintained as granted or in an amended form.
In case of revocation, the patent proprietor may appeal from the decision and the case will be further dealt with by the Federal Patent Court. If the patent is maintained as granted or in an amended form, the opponent may file an appeal to the Federal Patent Court.
If the opposition period has expired or opposition proceedings are no longer pending, a revocation action may be brought before the Federal Patent Court.
When can I claim priority?
The date of receipt of the patent application is also referred to as the "date governing the filing or priority date".
If an applicant has filed an application for the same invention in Germany at an earlier date, it is possible to claim priority of the earlier application (domestic priority). That means that the second application will be given the priority date of the earlier application. The second application must be filed within twelve months from the earlier application.
A domestic priority may be claimed, for example, if the original invention has been further improved. During the examination procedure, it is not allowed to add anything to the invention. This is why a further development of the invention, an improvement or an alternative may only be protected in a fresh application.
You may claim priority for an application in Germany from a previous foreign application or use a German priority for a later application outside Germany as long as the later application is filed within twelve months.
To obtain priority from the earlier application, you must give, on your own initiative, the file number of the original application. If you wish to claim priority of a foreign application you must give the date, country, file number of the earlier application and submit a copy of the earlier application.
Do I need a lawyer or patent attorney to file an application?
Applicants can apply for IP rights themselves. It is at the applicant's discretion to decide whether to seek the help of a lawyer or patent attorney. However, applicants who do not have their residence in Germany must be represented in respect of the application by an authorized lawyer or patent attorney.
More information on the website Legal representative.
Is it allowed to give the signature with a signature card of other members of staff of the law firm (not a lawyer/patent attorney) if an application is filed online by a lawyer or patent attorney via DPMAdirekt or epoline?
In case of electronic filing, the signature with a signature card may only be applied by a lawyer or patent attorney but not by other members of staff of the law firm pursuant to the Act on Legal Counselling (Rechtsdienstleistungsgesetz) applicable in Germany. Otherwise, the DPMA will request a handwritten signature of the lawyer/patent attorney authorised to represent.
However, if the application form is already signed with the signature card (smart card) of the lawyer/patent attorney authorised to represent using the epoline software, other members of staff of the law firm may subsequently send it.
How do I exploit my patent? Where can I find advice and funding schemes?
Our duties do not include patent exploitation or penalties in case of patent infringement. There are specific, publicly funded information portals on the Internet that provide information on IP exploitation and the promotion and funding of innovation and technology.
In addition, the German Chamber of Patent Attorneys offers free initial consultations for inventors at the DPMA in Munich, the Information and Service Centre in Berlin, some patent information centres and chambers of commerce and industry.
Has the DPMA received payment of the annual renewal fee for my patent and has the payment been processed?
For patents which are still in force, the next due date is displayed in DPMAregister in the section "Patents and utility models" in the list of master data in the "Due date" line.
In some cases, computation of the next fee due may be delayed. In such cases, the line "Due date" will temporarily not be displayed.
If the fee amount has been paid in full and correctly for the file number, the payment is usually processed within the next 35 days and – if admissible – the next due date will be indicated in the corresponding line. Since the DPMA does not issue receipts, you can use the updated data of your Register entry as confirmation of payment.
Information on the amount of the fees payable is available in the Information Concerning Costs, Fees and Expenses leaflet. More information on fee payments to the DPMA is available here.
May I use/copy a patent document (text and drawings) for my research paper or a presentation? Are patent documents protected by copyright?
Pursuant to Section 5(2) of the Copyright Act (Urheberrechtsgesetz), patent documents (first publications of applications, patent specifications and utility model specifications) are excluded from copyright protection from the time of their official publication. Please note that you are required to cite the source correctly when you publish a paper. The obligation to cite the source comprises the name of the authority and the reference. Examples of a correct citation of a patent document:
- DE 27 03 353 A1 or
- DE 10 2005 051 128 B4
For further examples on how to cite, please see our publication DPMAinformativ no. 3 (IPIA) (in German). You are not allowed to alter the text, the title, the drawings and the name of the patent applicant (see Sec. 62(1), first and second sentences, in conjunction with Sec. 39 Copyright Act: prohibition of alteration, and Sec. 63(1) and (2) Copyright Act: acknowledgement of source).
Complete collections of patent documents are frequently offered on the Internet or in small ads. Is this allowed? Are these offers trustworthy?
When a patent investigator has compiled vast collections of patent documents and offers these on the Internet or in small ads, they offer the added value – this means the time, technical know-how, experience in the field of patent search – which they have invested in establishing the collection. However, they must not give the impression that they act at the official request of the DPMA. Furthermore, they must observe prohibition of alteration pursuant to Section 5(2) in conjunction with Section 62(1), first and second sentences, and Section 39 of the Copyright Act (Urheberrechtsgesetz), and the obligation to acknowledge the source arising from Section 5(2) in conjunction with Section 63(1) and (2) of the Copyright Act. The provider is not likely to offer any guarantee for the completeness of the collections.
If you require information on the current state of the art, we therefore recommend carrying out a timely patent search. You can conduct this search yourself in a patent database such as DEPATISnet or have it carried out by an expert. Patent information centres and professional information providers in particular carry out patent searches. You can also commission a patent attorney to perform a search.
What is a request for re-establishment of rights and what do I have to bear in mind when filing such a request?
Pursuant to section 123 (1) sentence 1 of the Patent Act, any person who through no fault of his own was prevented from observing a time limit vis-à-vis the DPMA or the Federal Patent Court, where non-observance of which causes a legal disadvantage in accordance with the statutory provisions, shall have his rights re-established upon request.
Re-establishment of rights is possible, for example, with respect to the time limit for claiming a foreign priority (section 41 of the Patent Act), the time limit for filing the examination request (section 44 (2) of the Patent Act) and the time limits for payment (section 6 of the Patent Costs Act). Pursuant to section 123 (1) sentence 2 of the Patent Act and section 123a (3) of the Patent Act, re-establishment of rights is ruled out for certain statutory time limits. These include, for example, the time limit for giving notice of opposition (section 59 (1) of the Patent Act), the 12-month time limit under section 40 (1) of the Patent Act for filing a later application by the applicant to claim domestic priority and the one-month time limit under section 123a (2) of the Patent Act for a request for further processing.
A successful re-establishment of rights requires an admissible and well-founded request for re-establishment of rights. The exact requirements and time limits for this request are specified in section 123 of the Patent Act. In particular, a request for re-establishment of rights must be submitted within two months from the date of removal of the cause for non-payment and at the latest within twelve months after the last day of the period of payment, and the omitted act must be completed. The request for re-establishment of rights must be made in writing or electronically and must contain all relevant information, and in particular provide answers to the following questions:
- What time limit was not complied with and when was it noticed?
- What arrangements were made to comply with the time limit/what happened that the time limit was not met? (This needs to be explained in detail. Usually, it is not possible to provide additional reasons at a later date).
- The facts establishing the claim must be substantiated, e.g. by means of supporting documents. (These can also be submitted subsequently after the two-month time limit for submitting the request).
What fees are charged in the patent procedure?
Please refer to the Information Concerning Costs, Fees and Expenses (form A 9510.1) for the individual fee items and rates in procedures before the DPMA.
For each patent and each application an annual fee under the Patent Costs Act must be paid, without being invited to do so, at the beginning of the third and each subsequent year calculated from the date of filing (section 17 of the Patent Act).
The annual fees are due for each following term of protection on the last day of the month corresponding to the month when the application was filed (example: date of filing 15 June 2011, due date of the third annual fee 30 June 2013). If the annual fee is not paid by the end of the second month after the due date, the fee may still be paid together with the surcharge for late payment of 50 euros until the end of the sixth month after the due date (in the above example the period for payment of the surcharge ends on 31 December 2013).
You will also find an overview of the annual fees due in the bibliographic notification on your IP application.
What do I have to consider with regard to the payment of fees?
You will find the payment options available at the DPMA, including options for any instant payments, in the Patent Costs Payment Ordinance [Patentkostenzahlungsverordnung] (form A 9511.1). Please note our offer to collect fees by the SEPA core direct debit scheme (forms A 9530.1 to A9534.1).
Each payment must indicate the complete file number and the purpose of payment in the form of the fee number listed in the Schedule of Fees (annex to section 2 (1) of the Patent Costs Act, annex to section 2 (1) of the Ordinance on the Administrative Costs of the DPMA [DPMA-Verwaltungskostenverordnung]). The fee numbers of all fees and expenses are also indicated in the Information Concerning Costs, Fees and Expenses (form A 9510.1). Incorrect or incomplete information will delay processing.
What happens if I have not paid fees in due time or in full?
If due fees are not received by the DPMA in due time or in full, your request or application will be deemed withdrawn or your patent will lapse.
If you have missed a time limit for payment, it may under certain circumstances be possible to re-establish your rights with respect to the time limit for payment according to section 123 of the Patent Act. Further information on the request for re-establishment of rights is available in the FAQ What is a request for re-establishment of rights and what do I have to bear in mind when filing such a request?
Important: The DPMA does not send separate invoices or requests for payment of any fees that may be due. Ignorance of the fee amounts or the dates of payment of the fees due is no reason for re-establishment of rights.
Do you have any further questions?
Please call our Customer Care and Services (+49 089 2195-1000) - or send an e-mail to email@example.com.
Last updated: 5 June 2020