« PreviousContinue »
A person outside the realm can only obtain a patent through a representative in the country. This person, usually the correspondent of his local patent agent, represents the patentee in all civil law suits, and can enter criminal suits for infringing said patent.
What can be Patented.-Any invention permitting of an industrial exploitation, with these exceptions-foods, drinks, medicines, and chemical products are not patentable. Where, however, a new chemical process is patented, the patent is held to cover such products as are actually manufactured under that process. In the case of imported articles where there is good reason to suspect that they are made by a given patented chemical process, the burden of proving that they are not so patented rests with the importer, and in default of such proof they are held to be infringements. Two separate inventions cannot be granted under one patent. This rule is rigorously enforced.
Novelty. For a patent to be valid the invention must not before the date of application for the patent have been publicly used in the Empire, or published in any book or public print, within a hundred years prior to the date of the patent, to such an extent as to enable a person versed in the trade to manufacture it.
Germany having joined the Union for the Protection of Industrial Property, Patents taken out under the convention and based on a foreign application applied for within the previous twelve months, are not invalidated by publication after the application for such foreign application.
Official publications of certain countries which have granted reciprocal privileges are not considered publications within the meaning of the above clause till three months after their issue. Neither Great
Britain nor the United States are in this category at present.
The first person who applies for the patent gets it, irrespective of whether he be the inventor or not, with this reservation-if the applicant be proved to have obtained the invention surreptitiously or without permission from the description, drawing, models, or devices of another, that other can get the patent annulled, and on application within a month after said annulment can obtain a similar patent for himself, with a date prior to the day of publication of the original patent.
A patent is without effect on any person who has worked or made the necessary arrangements for working the invention in the Empire prior to the application for the patent. Such person can continue using the invention in his own or other workshops according to the requirements of his own business, and if he sells his business this right to use the invention passes to his successor.
Examination.—All inventions are rigidly examined in regard to novelty by the Examination Department of the Patent Office, and many inventions which would pass the United States examiners or a British court of law as novel are refused because the principle of the invention is old. If an application be allowed, it is published and is then open to opposition for two months before being granted; even those applications that are refused on opposition are published, but in any case the applicant on petition can get a delay of three or even six months before publication.
Oppositions and Petition for Annulment of patents are heard by the Patent Office and not by courts of law. For this purpose, the Patent Office is provided with a large staff of judicial and technical experts divided into the application, annulment,
and appeal departments. These three are entirely distinct, members of the application department not being allowed to have anything to do with appeals or annulments, and those of the other departments having no voice in granting applications (except, of course, when these applications have been refused and the decision is appealed against). Outside experts may be called in, but are not allowed to vote. The examiners of the application department are appointed for life. By this machinery there is abundant provision made for appeals from the primary examiner to the rest of the application department, and from them again to the appeal department. In the case of actions for infringement and for nullification there is also an appeal from the appeal department to the Imperial Supreme Court of Leipsic.
An application is refused if found to be (1) not new; (2) not a patentable invention; (3) not drawn up in accordance with the requirements of the law and the applicant declines to amend it; (4) contrary to law and order; or (5) if it be proved that the invention was abstracted from the specifications, drawings, models, implements, or devices of another, or from a process employed by the same.
Rights Secured by Patent.-A patent gives the sole right to make, use, and sell the invention. A patent once granted is guaranteed by the Government until a successful suit be brought against the Patent Office to annul the same, and it is no defence in an action for infringement that the invention is not new, not sufficiently described, or not patentable.
The penalty for knowingly infringing a patent is a fine up to £250, or imprisonment not exceeding one year, and the indemnification of the injured party. The patentee has also the right of publishing
the verdict of the Court at the expense of the infringer.
In a case of the infringement of a patented process for manufacture of a new material, all materials of a like nature are considered as made according to the patent until proof be produced to the contrary. It is no defence in case of infringement that the patent is bad; but the infringer can usually get the case delayed in order to petition the Patent Office for the revocation of the patent if the latter be not more than five years old, and the case will be heard by the annulment department of the Patent Office, which has power, after hearing both sides, to annul the whole or any part of the patent and decree costs to either party. If the petitioner be abroad, he may be called on to deposit security for these costs before being heard. If a patent under this law be on the rolls for five years it is no longer attackable.
Taxes. Patents of Invention are subject on pain of forfeiture to an annual tax increasing each year.
Patents of addition are granted free of further taxes terminating with the term of the principal patent, but if the principal patent be annulled by a court, the taxes are payable instead on the patent of addition on the day on which they would have to have been paid on the original patent. In this case the date of the patent of addition determines the amount of tax, the period between the date of the patent of addition and the next tax day being considered the first patent year of the patent of addition. The patent terminates at the end of the fifteen years' term of the original patent. The annual taxes can be paid at any time in advance, and, if the patent be officially abandoned before they come due, the taxes already paid but still undue will be returned. If by any chance
they be not paid when they become due, the patent becomes void, but can be resuscitated within twelve weeks of the date of the taxes becoming due by the payment of the said taxes, with an additional fine of 10s.
Working. A patent must be worked in the Empire to an adequate extent within three years of grant, or licenses must be granted to applicants on reasonable terms and security, or it can be annulled as contrary to public interest for it to be maintained. This rule is liberally interpreted. Making efforts to introduce the invention and being prepared to supply the demand may be deemed sufficient, and if there be no demand, and the inventor tries to create that demand and fails, the patent need not be worked till a demand springs up.
The declaration of the court in Wyngaert v. Wegmann, 1884, is instructive, where Wegmann manufactured the porcelain rollers of his mill in Switzerland, supplying them for mills manufactured in Germany, and Wyngaert sought to have the claim for the porcelain rollers made void. It is as follows: "As the defendant has not manufactured the patented rollers within three years in Germany, this court has the power to annul the patent, but it does not find any occasion to make use of its power, chiefly on account of the great advantages which have been conferred upon the German milling trade through the introduction of F. Wegmann's porcelain rollers. As a rule, a patent should be declared null and void, if not manufactured within the legal term. In this case, the chief weight of the national economical importance of the machine is not attached to its manufacture, but to its use, and, moreover, the legal requirements of the patent have been satisfied in Claim I.," which was for the machinery or mill in which the porcelain rollers were used.