German #softwarepatent 101: prosecution and enforcement in a nutshell

von Bastian Best

This post summarizes the prosecution process of German patent applications and the enforcement of German patents. The explanations mostly apply to software-related patents as well as to any other German patent regardless of its technical field.

How to get a German software patent?

Patent protection in Germany can be obtained either nationally by filing a national German patent application with the German Patent and Trademark Office or by designating Germany in a European patent application and subsequently validating the granted European patent in Germany. This post is restricted to German patent applications that have been filed nationally. The provisions of the EPC and the case law of the EPO concerning software are discussed in other places of this blog.

German patent applications are filed with the German Patent and Trademark Office (GPTO) in Munich, which examines patents before granting a patent thereon (or rejecting the application). In contrast to many other countries, a request for examination can be postponed up to seven years after the filing date, allowing the evaluation of the economic relevance of an invention before investing the costs for the examination procedure. The official fees for filing a national German patent application with ten claims including the examination fee are presently EUR 390.00.

Once a request for examination has been filed, the examination procedure is very similar to the US examination procedure. The examining division typically issues one or more official actions to which applicant can respond with arguments and/or amendments of the claims and the description within the limit of the original disclosure. If considered meaningful for an effective examination, the examiner may also hold an oral interview with applicant ...

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