German government further strengthens the GPTO – and what’s in it for you

Hogan Lovells

Hogan Lovells

[co author: Niels Gierse]

Despite the popularity of the European Patent Office (EPO), the German government has devoted significant resources to German Patent and Trademark Office (GPTO). Answering to a request from members of the German Parliament, the German government commits to further increase spending in the future.

A perfect excuse for us to look at why, despite the perceived dominance of the EPO, the GPTO is still a viable option. And why it just might be the right choice for your next patent application if you expect litigation in Germany.

To many applicants seeking protection for their innovation in Europe, the EPO is the first choice that comes to mind. The EPO allows applicants to file a single application and obtain a bundle of patents for each member state including highly relevant countries like Germany, UK, the Netherlands, and France.
At the same time, the member states of the EPO maintain their respective national patent offices, in Germany it is the GPTO, which grants German patents.

GPTO services in high demand and hiring more expertise

Answering to a request from members of parliament[1], the German government recently emphasized that it has been increasing resources for the GPTO over the last few years. The backbone of the GPTO and the main area of investment is its body of public servants. Public servants, e.g. those working as patent examiners, make the key decisions for applicants including granting, refusing or revoking a patent.
The government’s answer shows that the GPTO increased the number of Examiners by 27% in the last six years (from 1,413 in 2014 to 1,798 in 2020). Further, the German government commits to continue hiring even more Examiners in the future.
The answer from the German government also shows that the number of German patent applications, despite the strength of the EPO, has been increasing since 2016 and remains at a high level of above 46,000 per year. In 2019, the last year on record, 46,323 applications were filed.

A modern agency culling backlogs

The GPTO prides itself in being the first German agency to have paperless filing, paperless file handling and pioneering agile working for the employees. According to the request, the average time from patent application to grant is 4.5 years, and the German government pledges to bring down this number down to 3 years in the future by continuing to hire additional Examiners. Just for comparison: The average time to grant at the EPO is 28 months (including the faster divisional applications) while cases can be pending for up to 7 years at the EPO.
The government also points out that the backlog is reducing from year to year: the ratio between decided applications compared to filed applications was improved from 80% to 87% between 2016 and 2019. In other words, in 2016, for 10 applications that went into the patent office only 8 applications were decided by grant or refusal. In 2019, the last year on record, this ratio was improved to almost 9 out of 10.

Cost-effective patent application route, English applications possible

From a distance, one might wonder why the GPTO is still popular with applicants despite the benefits of the European Patent System. There are several reasons, but cost-effectiveness might be a central aspect: For example, a search report on a patent may be obtained for as little as 400 €, only a fraction of the costs at the EPO.
Also, the GPTO allows filing of applications in English for searches during the priority year. Further, the GPTO is renowned for high quality prior art searches and thorough technical analysis.

Expecting litigation in Germany?

From a litigation standpoint, it’s important to understand that the legal standards of case law applied during the grant procedure are identical with the legal standard of nullity actions.
Appeals on decisions by the GPTO are handled by judges of the Federal Patent Court, i.e. the same people who preside over nullity actions. It’s also useful to know that that judges of the Federal Patent Court are traditionally recruited from the ranks of the GPTO.

Next steps

• Want all the details? Check out the pre-print of the answer by the German government (in German) here: [1]

• Are you expecting patent litigation in Germany with your upcoming applications? Reach out to us to discuss which patent office is the best choice for your situation.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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