EN 
DE Supporting corporate strategy with intellectual property rights
Author: Ralph Fernolend, Maiwald Patentanwaltsgesellschaft mbH
Contribution – Embedded Software Engineering Congress 2015
Industrial property rights enable the protection of intellectual property and other intangible assets. This includes, for example, the results of innovative work (technical inventions) or product designations (trademarks). Unlike, for example, secrecy to protect one's own innovations, industrial property rights allow recourse to the sovereign power of the state in enforcing one's legal position against third parties and thus represent a crucial pillar for business operations.
What does an intellectual property right offer a company?
Obtaining a patent doesn't require reinventing the wheel! Rather, companies across the country solve specific problems every day, and these solutions are incorporated into products. Often, these solutions are simply "sold" to the customer along with the product. In doing so, a company relinquishes control over its own innovation. Publishing unprotected technical solutions for specific problems turns the solution into public intellectual property, meaning that, in principle, anyone can replicate the functional principle of the published product. This can trigger a price war with cheaper competitors who simply "copy" the product. To avoid this situation, companies can register various intellectual property rights with patent offices. If these rights are granted, the holder has a time-limited (and sometimes renewable) monopoly position and can prohibit any third party from offering and distributing the protected item in the relevant country.
Intellectual property rights are therefore nothing more than a form of state support to reward a company's personnel and financial efforts in developing and/or establishing a product on the market. Applications for intellectual property rights can be filed individually in each country or with regional patent offices, such as the European Patent Office (EPO). Patents granted by national offices are valid only in the country concerned, while patents granted by the EPO can be valid in any of the member states of the European Patent Convention (EPC).
Intellectual property rights as (time-limited) monopolies
An industrial property right is generally structured in such a way that it grants its holder the right to exclude third parties from using, manufacturing, and distributing the protected subject matter. However, the holder of the right is generally not obligated to use it. This structure stems from the fundamental principle that a market participant's actions should, as far as possible, be carried out in their own free exercise of economic activity. Therefore, an intellectual property right does not obligate its holder to use the protected subject matter, but it does enable them to prevent third parties from using it.
Individual intellectual property rights
Industrial property rights include, above all, patents, utility models, trademarks, and designs.
The brand
A trademark serves to identify goods and services. Its primary function is to indicate the commercial origin or manufacturer of a good or service. Protection can be maintained indefinitely upon payment of the appropriate fees. Trademark registration does not require (technical) innovation, but merely that the mark be designed in such a way that a consumer recognizes it as a trademark and not simply as a product description. If a trademark is similar to an existing trademark for similar or identical products, the owner of the existing trademark can apply for the cancellation of the later trademark.
The design
Design protection is similar to trademark protection and is granted for the appearance of a product or parts thereof.
The patent
A patent is the most important form of intellectual property protection for technological innovations and has a term of 20 years. Granting a patent requires an invention that distinguishes itself from the prior art. A patent examiner conducts a substantive examination to determine whether the applied-for subject matter meets the requirements of patent law (including novelty and inventive step). Unlike a trademark, a patent protects a technical aspect (e.g., the structural design and/or operation) of a product and does not merely establish a connection between a product and a manufacturer. The aim is generally to limit the scope of protection of a patent to the core aspect of an idea and to make it as general and broad as possible in order to protect the use of the idea in various technical applications, thus making it more difficult to circumvent patent protection. In a product with several interlocking technical concepts, the subject matter of multiple patents may be covered, for example, a mobile phone might have a patent for the display technology and a patent for the battery.
The utility model
Also known as a "petty patent," it is not examined before registration. A utility model has a term of 10 years; unlike a patent, it is an unexamined intellectual property right. The rights granted by a utility model are essentially the same as those granted by a patent.
The invention and the patent in the employee/employer relationship
The German Employee Inventions Act imposes obligations on both the employee and the employer and grants each reciprocal rights. For example, the employee is obligated to report any invention to the employer, and the employer can claim or release it if it is a service invention. If the employer claims the invention, they are obligated to register it as an intellectual property right (usually as a patent application). The inventor, i.e., the employee, is obligated to support the patent granting process. The employee has a claim to compensation from the employer, known as inventor's remuneration. This claim arises upon the employee's claim to the invention.
Paths to a patent
Anyone can file a patent application with a patent office or acceptance office. In Germany, for example, a patent application can be filed as a German application with the DPMA (German Patent and Trade Mark Office) or as a European patent application with the EPO (European Patent Office). There is also the option of filing an international patent application. A patent granted by the DPMA provides patent protection within the territory of the Federal Republic of Germany. A patent granted by the EPO can provide patent protection in any of the (currently) 38 member states; a European patent application consolidates the granting procedure at one office and enables protection in several countries. An international patent application offers the possibility of initiating national patent granting procedures in (currently) approximately 150 countries within a specific timeframe, based on the international patent application. The advantage of an international patent application is that it secures an early priority date while still providing a decision period of approximately 2.5 years in which to decide in which country patent protection to seek.
Summary
Intellectual property rights are an essential component of long-term business operations and can be used to protect innovations and investments. The preferred method for protecting technical innovations is patent registration. Investments in establishing a product and its associated trademarks in the market are best protected by trademark registration.
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