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Utility model

Utility model

The German Utility model law (GebrMG) protects – just like a patent – technical inventions, like, for example, an apparatus or materials. In contrast to patent protection, however, the protection of a method is excluded from utility models. A further difference to patent protection, moreover, is based on the fact that a utility model is an unexamined right which might bear – for its owner – some kind of risks.

Protection of a utility model can be achieved by registration of the latter after filing an application with the German Patent and Trademark Office. As mentioned above, the German Patent and Trademark Office (DPMA, LINK) only formally checks the application, but does not carry out a substantive examination of its subject-matter, as, for example, with respect to novelty and inventive step. An examination as to protectability of a utility model might only be carried out subsequent to registration, for example, during infringement proceedings or in case a request for cancellation of the utility model is filed with the German Patent and Trademark Office.

A further difference between a utility model and a patent actually is the evaluation of novelty of its subject-matter. Due to the so-called “grace period” which only is applicable in view of a utility model, the latter might - in some cases - be preferable to a patent, because for the evaluation of novelty, a publication of its subject-matter made by the inventor himself or his legal successor within six months prior to application of the utility model is not novelty-destroying. This novelty evaluation procedure is somewhat similar to US patent law according to which a twelve month grace period is also applicable for a patent.

Further, the evaluation of novelty of the subject-matter of a utility model only involves written and no oral disclosures. Moreover, in view of prior uses, for a utility model, only domestic prior uses are relevant. The utility model often is called a „small patent“ and in the past due to slightly less official fees and the lacking of an substantive examination procedure, basically was considered as representing a low cost alternative to a patent. Due to the advantages of a utility model listed above, the latter, however, should not only be considered as a „small patent“. In specific cases, a utility model can actually be preferable to a patent or it can also be applied for in addition to a patent. However, it should be noted that utility model protection can only be extended up to a period of ten years at a maximum.