In Germany, intellectual property is protected from imitation through the granting of property rights. The following property rights are differentiated between:
- Patents (protection of new technical inventions)
- Utility models (protection of technical innovations; in contrast to a patent, purely a registered right)
- Industrial designs (protection of designs, patterns and models)
- Trade marks (e.g. word and figurative marks)
Where the property rights are registered depends on the type of protection sought. If the German market suffices, you can approach the German Patent and Trade Mark Office. Protection at European level can be sought at the European Patent Office. The World Intellectual Property Organization(WIPO) additionally offers international patent protection.
Handling of Intellectual Property Rights in Germany
On principle, researchers should ask their employers at an early stage about the handling of intellectual property, patents and inventions.
Institutions of higher education and research institutions in Germany usually comply with the German Research Foundation's (DFG) "Safeguarding Good Scientific Practice", which is supposed to safeguard good scientific practice.
Pursuant to § 5 of the German Law on Employee Inventions ("Arbeitnehmererfindungsgesetz"), the employer must be informed of all inventions made during employment under private law.
According to this law, the employer is in principle entitled to claim the invention and the employee is merely entitled to claim reasonable compensation. However, this only applies for so-called service inventions ("Diensterfindungen") made during the period of employment either arising from the employee's role at the company or based to a significant extent on the company's experience or work. The employer's contribution to the invention is thus taken into account. All other inventions are so-called free inventions ("freie Erfindungen"). The employee is obliged to offer the employer at least a "non-exclusive" right to use the invention on reasonable terms if it falls within the scope of the employer's business operations.
Deviating from this, the employer is also able to claim a share in the employees' patent earnings if this was agreed beforehand or to impose restrictions in the case of inventions by employees in public service pursuant to § 40 of the Law on Employee Inventions. These additional provisions apply to employment relationships in the enterprises and administration of corporations, institutions and foundations under public law.
With regard to inventions at universities, certain privileges exist for employees pursuant to § 42 of the Law on Employee Inventions. They are permitted to publish their inventions within the scope of their teaching and research work insofar as the employer (federal state or university) is informed of this in a timely manner. If there is no intention to publish the invention, there is also no requirement to inform the employer. Should the employer lay claim to the invention, the inventor retains a non-exclusive right to usage within the scope of their teaching and research work.
If the employer ultimately utilises the invention, a fixed 30 % of the earnings generated must be paid to the inventor as compensation.
Legal provisions also determine who in an employment relationship is entitled to the fruits of intellectual property at the various stages of completion of an invention.
For computer programmes, § 69b of the German Copyright Act ("Urheberrechtsgesetz") specifies the following: where a computer programme is created by an employee in the execution of his duties or based on the instructions given by his employer, the employer shall exclusively be entitled to exercise all the economic rights in the programme, unless otherwise agreed. This provision is standard as the rule of interpretation in employment contracts: in case of doubt, those paid to provide creative services thus transfer the usage rights for the product to their employer.
At institutions of higher education and at scientific research institutions, there is nearly always an office responsible for the transfer of research and technology. This should be the first place you go to get advice on handling intellectual property and to register patents and licences. You will be able to get information on the necessary procedures and regulations at the respective university or research institution here and also get support in carrying out the steps required to complete registration.
The centres responsible for the transfer of research and technology can usually provide information on liability in connection with your scientific work.
German Horizon Europe Portal
Information on the handling of intellectual property rights in Horizon Europe
Intellectual property - IPR Helpdesk project
Information on the protection of intellectual property rights in general and in connection with projects within EU Research and Innovation programmes