Utility Models

1. Requirements for Protectability

Similar as for a patent, as utility model an invention may be protected which is new, involves an inventive step and is susceptible of industrial application.

1.1 Invention

As for a patent an invention in any field of technology may be protected by a utility model. However, in contrast to a patent, a utility model cannot protect a method.

1.2 Novelty

An invention is regarded as new if it does not belong to the prior art. The prior art herein contains everything that was publicy known prior to the priority of the utility model through written description anywhere in the world or through public use in Germany (!).

For utility models there is a grace period: a publication of the invention through the applicant himself within six months prior to the priority of the utility model application does not destroy the novelty of the invention.

1.3 Inventive Step

However, it is not sufficient for the invention to be new with regard to the prior art. The invention must also involve an inventive step. An invention is considered to involve an inventive step if it does not, for the person skilled in the art, follow in an obvious manner from the prior art.

1.4 Industrial Application

If an invention can be utilized in any industrial field including agriculture, it is considered to be susceptible of industrial application.

2. Filing Procedure

A  utility model application  contains a technical description of the invention, claims and in general also drawings. The utility model application is filed together with a request at the German Patent and Trademark Office in paper or electronically.

A utility model represents a non-examined protective right which is inspected by the Patent Office only with regard to its formal requirements, but not with respect to the material criteria of the protectability (novelty, inventive step). On request the German Patent and Trademark Office performs a search for relevant prior art.

If the formal requirements are fulfilled, the German Patent and Trademark Office registers the utility model in the utility model register. From the day of registration claims on the basis of the utility model may be asserted.

The maximum duration of a German utility model is 10 years from the filing date.

3. Utility Model Infringement

A utility model infringement is existent if a third party uses the subject-matter of the utility model in an identical or equivalent manner. For determining the subject-matter of the utility model and its scope of protection the claims are essential, wherein the description and the drawings are referred to for interpretation.

If an owner of a utility model finds an infringement and wishes to enforce his utility model against the infringer, this in general is possible by filing a legal action at a competent district court. By filing a legal action for example claims for injunctive relief or indemnification may be asserted. Conventionally, a notice of production of legitimacy claim and/or a cease-and-desist letter are sent first, but are not a must.