Due to the constant further development of science and technology, it must be continuously redefined what is available for patent protection. In general, objects and processes from all fields of technology are patentable; but the advancement of science is constantly extending the traditional definition of technology. Furthermore, it must be possible to perform the invention and the presentation must allow to repeat it in order to be patentable.
Pursuant to Section 1(1) of the Patent Act (Patentgesetz), there are three criteria for inventions to be patentable:
- inventive step
- industrial applicability
An invention is new if it does not form part of the state of the art. The state of the art comprises all knowledge made available to the public by any means, anywhere in the world, before the date of filing. It can be made available by written or oral descriptions, use or exhibitions among other things. Written descriptions include, for example, books, journals and patent documents. Oral descriptions include, for example, a lecture delivered at a conference.
Even such information forms part of the state of the art that the inventor themself has published. If you have made an invention, make sure to keep it secret until you have applied for a patent.
Even if your invention is new worldwide, this does not automatically make it patentable. If the invention is obvious or trivial, you cannot get a patent. Inventive step means that the innovation must sufficiently differ from prior art.
Pursuant to Section 5 of the Patent Act, an “invention shall be deemed to be susceptible of industrial application if it can be made or used in any kind of industry, including agriculture”. Medical and surgical treatment and diagnostic methods are excluded from patent protection. Nevertheless, products that are intended to be used within the framework of such a method, such as surgical instruments or medicinal products, are protectable.
What is a technical invention?
A patent is granted only for technical inventions. However, the constant further development of science and technology is continuously redefining what is available for patent protection. Therefore, the Patent Act does not define a technical invention.
It does list what is not considered a technical invention and what is therefore not patentable, for example:
- discoveries (finding something already existing such as magnetism, x-rays)
- scientific theories
- mathematical methods
- aesthetic creations (they may be eligible for design protection)
- schemes, rules and methods for performing mental acts, playing games or doing business
- programs for computers and presentations of information
Exclusions and special provisions
Examples for further exclusions from patent protection:
- inventions contrary to morality or ordre public
- plant and animal varieties (protection for plant varieties can be applied for at the Federal Office of Plant Varieties in Hanover)
- processes for cloning human beings
- processes for modifying the germ line genetic identity of human beings
Under certain conditions, the following is patentable:
Computer programs as such are not patentable, while computer-implemented inventions are. The latter must be based on technical considerations and solve a technical problem.
Inventions in the field of microbiology and biotechnology are not generally excluded from patent protection. The provisions of the EU Biotech Directive also have an effect on national legislation.