In December 2009, the Council of Ministers of the European Union met in Brussels to achieve further progress towards establishment of the new Community Patent that has been under discussion for some years. The aim behind the Community Patent is to provide inventions with patent protection throughout the EU by means of a single, uniform patent. A draft regulation has now been submitted to the European Parliament for further deliberation.
The ministers also considered the creation of a single Community Patent Court that will facilitate the enforcement of patents and prevent contradictory decisions by national courts. The European Patent Court will be based on proven jurisdictional structures at national level and work in geographical proximity to the parties in proceedings. An Appeal Court will ensure consistency of patent adjudication.
Further negotiations will be conducted this year on structural details of the new court system and in particular on the issue of Community Patent languages that has been controversially debated for many years.

On 18 June 2009, the German parliament passed two laws relating to international design protection. The new laws will bring harmonise German design law at international level and ensure that the conditions for ratification of the Geneva Act are met. By ratifying the Geneva Act and amending the German Design Act, Germany has broadened the options for international registration of designs at WIPO and improved the international registration procedure at the German Patent and Trademark Office. There are further plans to supplement the Design Act with rules on the effect of international registrations, on notifications of refusal and on the possibility of removing design protection.

On 29 January 2010, the Patent Prosection Highway (PPH) between the JPO and the EPA will be launched. The PPH will enable the examination of claims considered patentable by either of the two Offices to be expedited, on request, at the respective Office of second filing. The Office of second filing may exploit the search and examination results of the respective other Office, thus enabling global patents to be obtained efficiently, the search and examination workload to be reduced and the quality of patent examination to be improved worldwide.

Please note that our offices will be closed for Christmas and New Years holidays:

December 24, 2009 through December 27, 2009
December 31, 2009 through January 03, 2010

Contra product pirates – Confucius would say that copying a product equates to special recognition of the original. Yet the limits of acceptable imitation are quickly reached when real confusion between the original and the imitation arises among the customer and target groups to whom the original product is marketed.

There is an all too frequent assumption that product imitation is a mere peccadillo or trivial offence. It is indeed the case that imitating the original product is essentially permitted – unless the maker of the original product has a registered industrial property right (e.g. a patent, utility model, registered design or trademark) for its product. Freedom to imitate ends then, at the latest, because the proprietor (or licensee!) of intellectual property rights is entitled to a monopoly on the use of those rights.

On 28 May 2009, the German Bundestag passed a new Act, effective from 1 October 2009, that simplifies and modernises German patent law. Improvements to patent nullity proceedings and employee inventor law are at the heart of the bill.

1. Nullity proceedings to be streamlined

In future, the parties must be referred as early as possible, even in the first instance of nullity proceedings, to aspects that will probably be of relevance to the court's decision, but which have not been sufficiently discussed by the parties. Deadlines may now be set to limit the possibility of presenting new arguments in defence of or against the patent, which in the past has frequently led to delays in proceedings due to adjournments. Both of these changes provide legal security for the parties by preparing them better than hitherto for the issues that will be discussed in court.

It is also intended to shorten the second instance of nullity proceedings (appeal proceedings before the Federal Court of Justice) in future. The aim of the new law is to halve the duration of proceedings, currently more than four years. Under these reforms, the appointment of an expert, now a time-consuming procedure, will be required in exceptional cases only.

2. Employee inventor law to be simplified

The cumbersome regulations in force so far have resulted again and again in errors being committed in companies; this will be prevented in future by the introduction of a legal fiction of a claim. Under the new law, employee inventions will transfer automatically to the employer four months after they are reported, unless the employer releases the invention within that period. No change has been made to the basic duty of employers to remunerate employees for their inventions.