Industrial property protection
The term „industrial property protection” includes everything that serves the protection of utilizable industrial intellectual property and the involved legitimate interests. Basically anyone can provide such services, no matter in which area, so the basic issue remains, how it is possible to protect these services. Therefore it is necessary to know, which possibilities of protection are available.
Industrial property protection includes the general industrial property protection, the labeling protection and the protection of competition.
Classification of industrial property rights
Industrial property protection is divided into technical protective rights and aesthetic protective rights. Technical protective rights provide teachings for technical actions and also instructions for advanced technicians on how to solve different tasks. The patent and the utility model belong into this area.
An ornamental protective right is the design patent. It protects color- and shape design of two and three-dimensional products, which are capable of and are made in order to address the human sense of aesthetic form. It does not provide teachings for technical actions, instead it shows a finished layout or a finished design.
A trademark can be anything from a sign, symbol, included words and personal names, illustrations, letters, numbers, acoustic signs, three-dimensional designs, included the shape of a product or its packaging, any layout and even the color or color composition, as long as it is suited to differentiate the products and services of a company from the products and services of other companies.
While the other protective rights require a distinguished registration procedure or application procedure and therefore require an application at an administrative body, the trademark results by simple externalization of the work by the creator, verified by the copyright law. The copyright law is similar to the right of property of the creator of his individual intellectual work. The intellectual work can consists of the content, or the inner and outer shape. Examples for copyrights are musical compositions, novels, paintings, photographs but also data processing software.
The industrial rights (patents and utility models), the design-patent, the trademark and labeling rights provide in general an exclusive right of use. In other words, no third party is allowed to use the rights without the permission of the rights owner. The situation is different with the rights against reproduction and distribution. However in case a third party has created the product by itself, and is able to prove that, the aesthetic right (design-patent and trademark) does not include this creation.
Additionally the industrial property rights include the protection of competition. Every regulation for the maintenance and monitoring of the competition and finally the social market economy are listed there.
Why do we need legal protection?
The question arises, why do we need legal protection? In 2017, over 300.000 patents were filed at European patent office. If only some of all these applications would lead to protective rights, why do the applicants strive for these kind of protection? There are several reasons:
In Germany and many other countries the basic principle of freedom to copy applies, as long as no anti-competitive circumstances are present. That means in general, that without legal protection everything can be copied, indifferent what kind of investments had been made. Although the unfair competition act prohibits some sort of copying, for example in the fashion sector a collection is not protected anymore after one season and can be easily copied and cheaply manufactured in third world countries for the same market. The unfair competition act takes effect in extreme cases of price undercutting or when the reputation of a company is abused. In general the unfair competition act is not suited to protect the rights of the inventors whereas property rights are far more suitable.
If an individual has an idea that he wants to protect against imitators, he can do that with the property rights. It enables him to show his idea for example to investors and can assert claims in case of abuses.
Property rights can be used as an asset in the case of a company foundation that prove the innovative capability of the company.
The reference to property rights can be a market advantage because the market associates protected goods with higher quality.
On which basis does the state grant these protective rights?
In the end, protective rights are a contract between the applicant and the general public or the state. In the case of an invention, the inventor has to present his invention to the public, that an average specialist is able to recreate the invention. The public gains access to the body of thought, which otherwise never would have happened. As a reward, for publishing this body of thought, the inventor gains a time limited monopole, which enables him, for this given period of time, to exploit his idea all by himself. As a result, different inventors will try to refine the invention or create a workaround, which can be better than the invention in the first place, thereby contributing to the competition. Without the knowledge of the previous invention, this evolution might never have happened, this is especially crucial for high technology countries, which depend on such evolution of technology. In conclusion, the state creates an inventor friendly atmosphere that encourages inventors and promotes competition and technological evolution by providing protective rights.
Computer software is a problem area for protective rights. One possibility is the copyright law. According to § 2 section 1 UrhG data processing software creations can be protected by copyright laws. However with the term creation you are already facing the first problem. Because of repeated usage of known algorithms in software, the jurisdiction has high requirements for software to be able to be protected, therefore only a few programs are protectable. This protection also applies only to the source code. Insofar it can be assumed that currently nearly 95% of all computer software is not capable of being protected.
Another possibility are technical protective rights. Admittedly the patent law does not grant this kind of protection to data processing software, according to §1 PatG, thus the problem arise on how to protect the software? Recent jurisdiction recognizes that at least some technical context is sufficient in order that computer software is protectable under the patent law. The substantial differentiating characteristic is the technicity. A technical reference is sufficient. An example for the broad understanding of the European patent office is an interactive shopping cart for the internet, which can be utilized by the user.
Obviously not protectable are applications, concerning a mathematical method, instructions for intellectual activities or the playback of information. For example a software, which corrects Arabic letters depending on their position in a sentence is not protectable because of the lack of technicity. Contrary a program that creates the workflow of a machine, which works independently afterwards is protectable by law.
In conclusion a technical connection in-between the task and the solution of an invention has to exist. A new built computer or a software with technical reference are basically patentable, as long as they fulfil the other requirements of patents, too. However there is a difference in the practice of sentencing between the German and the European patent office. Software inventions are more likely to be patented by the European patent office, even with smaller technicity.