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06-12-2013 » Amendments to the German patent law

In Germany, amendments to the patent law were announced in the Federal Law Gazette (BGBl. I p. 3830) on October 24, 2013, and will be valid as of April 1, 2014. Key aspects are the following:

- upon early filing, a first German office action with search result could be obtained for an ENGLISH or FRENCH version of the application,

- German and European patent proceedings are approximated while a possibility to wait with examination in Germany up to 7 years after filing remains.

New time limit for translations

In case that a German PATENT or UTILITY model application is not filed in German, a translation into German has to be filed within 3 months from the filing date. However, as of April 1, 2014, and in case of a German PATENT application filed in ENGLISH or FRENCH a new time limit for filing the translation into German applies which is 12 months from the filing date or 15 months from the earliest priority claimed, whatever expires earlier.

With the new “12/≤15-months’ time limit” the German Patent Office may provide an examination result for a French or English version of a patent application, since the Office continues to accelerate examination in case that a request for examination is filed within 4 months after the earliest priority date (or the filing date in case that no priority is claimed). In this case, as a general rule, the German Patent Office proceeds with the examination request within 8 months from the earliest priority date (or the filing date in case that no priority is claimed. However the German examiner is not obliged to search and examine a filed ENGLISH or FRENCH version of the application but may invite a translation into German even before expiry of the new “12/≤15-months’ time limit” (§ 35a PatG as of April 1, 2014).

For a German patent applications in ENGLISH, FRENCH or GERMAN as of April 1, 2014 which are timely filed with examination request generally a German office action with search result could thus be available as a basis to decide subsequent international or foreign applications with priority claim ("Information for Patent Applicants" Form P2791.1/3.12 of the German Patent Office).

Patent search and examination

Unlike proceedings at the European Patent Office search and examination are not generally split in the German Patent Office but may be initiated with an examination request until expiry of 7 years after filing the patent application. A search request separately and prior to the examination request is optional (§§ 43, 44 PatG).

If the applicant has not yet filed a corresponding request within the 7 year period a THIRD PARTY has the option to request examination but as of April 1, 2014 the THIRD PARTY will no more have any option to request a search only (§ 43 PatG as of April 1, 2014).

In case of lack of UNITY as of April 1, 2014, a patent application subject to the optional search request will be searched only for the invention first mentioned in the claims (§ 43(6) PatG as of April 1, 2014).

Oral Procedures

Not only in opposition proceedings but as of April 1, 2014 also in examination proceedings parties have on request a codified right for an oral hearing (§ 46(1) PatG as of April 1, 2014, whereas an oral hearing in examination had to be found to be relevant by the Examiner before April 1, 2014). As of April 1, 2014 the hearing in opposition proceedings is public (§59(3) PatG as of April 1, 2014).

Opposition Period

The opposition period of currently 3 months from the publication of the grant is extended to 9 months as of April 1, 2014 (§ 59(1) PatG as of April 1, 2014).

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