Under which requirements are protective rights granted? It is self-explanatory that industrial protective rights are bound to some requirements to be legally valid. The requirements for a patent (§1 PatG) or a utility model (§1 GebrMG) are the following: the protective right must be new, be based on an inventive step and be applicable in a commercial way. These attributes are defined by:
The novelty is defined in the patent law § 3 PatG: „An invention is considered new, if it is not state of the art. To the state of the art belongs all knowledge, which had made been public either written, verbally or in any other way before the seniority of the patent application“
The patent law describes the absolute novelty concept. Basically everything that had been made public somewhere before the day of the application stands against the application. Any form of former publication of the invention can infringe the status of novelty, even a retelling without a non-disclosure agreement. For everyone involved with the protective right applies this basic rule:
FIRST FILE THE APPLICATION, THAN THE PUBLICATION!
The patent law provides therefore a speciality: the publication (disclosure) takes place 18 months after the application.
One requirement for the legal validity of protective rights is the special achievement. In other words the achievement should not be obvious to the average specialist. After all, the development of technology should not be prevented by the patent law. Therefore it is not enough that the invented object is new in comparison to the state of the art, if it could be easily created by another specialist. It is not part of an inventive step. This space in between the state of the art and the invention is left open to promote the natural development of technology.
How is it possible to find out, if an achievement differs from the previously known state of the art far enough, to be considered an inventive step?
In order to solve this problem, an average specialist is defined, who should achieve the same task, which the invention does. He is averagely skilled in this matter, has basic skills beside this matter and has access to the state of the art technology in this field. Should this specialist solve the task the same way, like the invention does, it can be argued that non special achievement has been done by the inventor.
Criteria for your own achivements
For further differentiation the jurisdiction has established some auxiliary considerations, which can let you argue, that your achievements should be considered an inventive step. Examples are:
the invention removes or overcomes technical difficulties
individual inventive attributes possess a high value, for example a high rate of cost reduction
the invention satisfies a long existing demand
the invention concerns bulk commodity, where a small step can lead to big advances
to achieve the invention, an averaged skilled specialist, based on the state of the art of technology, has to take several imaginative steps
the invention is breaking new grounds
the stringed together attributes interact with each other and generate an synergetic effect
the invention inherits unexpected advantages
the invention eliminates prejudices amongst experts
the closest state of the art is already several years old, and no one was able to further advance it or solve an general problem that it inherits
Uniformity of the invention
Only one invention or a group of inventions with the same inventive idea are allowed per application (§ 34 Abs. 5 PatG).
The requirement of uniformity of the invention is fulfilled, if a technical connection between the inventions exists, that is expressed by one or more corresponding technical attributes.