Peculiarities of German Utility Models

1. Prior Art:

 
• Prior public uses outside Germany do not constitute prior art with respect to German utility models.

 
• Oral disclosures do not constitute prior art with respect to German utility models.

 
• Older, but post-published patent and utility model applications do not constitute prior art. However, a utility model must not protect subject-matter which is already protected by an older patent or utility model.

 
• There is a six-month period of grace before the priority date for written disclosures or prior public use by the applicant or his predecessor in title.

 
2. Protectable Subject-Matter:

Under the new Utility Model Act applicable since July 1, 1990, everything which is protectable by a patent is also protectable by a utility model with the exception of processes and methods. In particular, chemical compositions and electronic circuits are now protectable by a utility model.
 
3. The maximum duration of a utility model is ten years.

 
4. Examination:

German utility models are registered without examination as to the merits. Registration usually takes place within two to four months. It is possible to request a prior art search.
 
5. Priority of a pending patent application:

The priority of a German patent application or a European or international (PCT) patent application designating Germany - including a possible convention priority - can be used by a German utility model which is identical to that patent application. Such a utility model can be filed at any time during the pendency of the patent application up to the end of the second complete calendar month after grant of the patent, rejection of the patent application or conclusion of opposition proceedings - but in any event only within ten years after filing the patent application. Such a German utility model branched off from a pending patent application can be very helpful, particularly in case of infringement of a European patent application and especially when a positive European Patent Office Action is available. As you are no doubt aware, European grant proceedings are quite lengthy. As mentioned above, a German utility model will usually be registered within a few months and confers on the owner the same right as a granted patent. Therefore, if time is important, it is advisable to file such a branched-off utility model and to base an infringement action on this rather than await grant of the European patent.
 

6. Coexistence with an identical European patent:

A German utility model can coexist with an identical European patent. It can also coexist with an identical German national patent.  In contrast. a German national patent cannot coexist with an identical European patent designating Germany. It becomes ineffective in as much as its scope of protection overlaps with that of the European patent as soon as the grant of the European patent is final.


7. Designation of inventors and abstract:

A designation of inventors and an abstract do not have to be filed in utility model applications.

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