Software patents in Germany: Should you file with the EPO or the German Patent Office?

von Bastian Best

Software patents in Germany: Should you file with the EPO or the German Patent Office?

Today, patent protection in Germany can be obtained either

nationally by filing a national German patent application with the German Patent and Trademark Office (GPTO); or by validating a European patent granted by the EPO and designating Germany.

Whereas a national German patent application will be examined for the patentability criteria by the examiners of the GPTO, it is the European Patent Office (EPO) that examines a European patent before grant. The validation of a granted European patent in Germany is then only a formality, without any examination.

Isn’t the law unified?

The statutes in the German Patent Act applied by the GPTO and the German courts are almost identical to the corresponding provisions in the European Patent Convention (EPC). The recent interpretation of the statutes by the German courts, however, differs considerably from the case law of the EPO, although the German Federal Court of Justice (FCJ) has repeatedly stressed that its decisions concerning the patentability of software-related inventions are in line with the decisions of the Boards of Appeal of the EPO ...

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