Technical Protective Rights in Europe

Transcription

1 Technical Protective Rights in Europe

2 Patent Protection in Europe A Brief Introduction The European Patent The European Patent Convention (EPC) provides patent coverage throughout the countries of the European Union and beyond, on the basis of a centralized and uniform procedure for the examination of European patents. Examination and also opposition proceedings, if any, take place at one single office, the European Patent Office (EPO). Once a European patent is granted, it splits-up into a bundle of national patents covering the countries in which protection is desired. Each of these national patents becomes an independent entity, and must be maintained through payment of annual fees to the relevant national patent offices, and must, if necessary, be enforced before national courts. 2

3 On August 1, 2009 the EPC Member States included: AT Austria BE Belgium BG Bulgaria CH Switzerland CY Cyprus CZ Czech Republic DE Germany DK Denmark EE Estonia ES Spain FI Finland FR France GB United Kingdom GR Greece HU Hungary IE Ireland IT Italy LI Liechtenstein LT Lithuania LU Luxembourg LV Latvia MC Monaco MK Macedonia MT Malta NL Netherlands NO Norway PL Poland PT Portugal RO Romania SM San Marino SE Sweden SI Slovenia SK Slovakia TR Turkey Some further (Eastern) European countries have the status of so-called Extension States, where the effect of a European patent is accepted, on the basis of a bilateral agreement with the EPC. These Extension States are: AL Albania BA Bosnia and Herzegovina RS Serbia 3

4 The Patent Cooperation Treaty (PCT) The Patent Cooperation Treaty, widely known as the PCT, provides a centralized system for International patent applications in an ever increasing community of Member States. The PCT application can be regarded as a bundle of options for the subsequent filing of national or regional patent or utility model applications. The option may be exercised within 30/31 months from the earliest priority date (this date being the first time the Applicant filed the subject matter at an appropriate patent office). Exercising said option is known as Entering the National or Regional Phase. The respective applications are then treated before the corresponding national or regional offices as if they had been directly filed there, but with the benefit of having the international filing date. Generally, the use of the PCT will give the applicants more time to make cost-incurring decisions, and it will ease the prosecution of a global patent strategy. Additionally, and rather significantly, it preserves the opportunity of obtaining worldwide patent protection for a further one and a half years after expiry of the priority period, whilst incurring moderate costs. National Patents Of course, choosing to file patent applications directly with a national patent office may be a sensible choice. This is particularly so, if the number of countries to be covered is small and clearly defined, and/or the Applicant s budget is very limited. 4

5 National Utility Models A Utility Model is often referred to as the little brother of the patent. Within the EU, a Utility Model is available in a number of Member States. Generally, a Utility Model provides quick protection of new products, whilst benefiting from comparatively low costs. In certain selected countries, a Utility Model may strategically complement a European or national Patent in important technical fields. Compared with a Patent, further advantages of a Utility Model are that less strict criteria relating to both the novelty and inventive activity are applied. Within Germany, in particular, the applicant has also the option to amend the claims without elaborate proceedings, should this become necessary. 5

6 The European Patent in More Details European patents are examined and granted by the European Patent Office (EPO) which is located in Munich. A Branch Office exists in The Hague, and further sub-offices are located in Berlin and Vienna. The EPO s centralized procedure leads the Applicant through the processes of application, examination, grant and, if applicable, opposition. This is achieved, of course, in cooperation with a single IP law firm striving to enforce the Applicant s interests. Application Requirements The Applicant can be any natural or legal person, or any body equivalent to a legal person by virtue of the national law governing the person or body. Further, the Applicant needs not to be a national of either an EPC Member State or a Member State of the Paris Convention. If, however, the Applicant does not have either a residence or a legal seat in one of the EPC Member States, they must be represented by a professional representative and act through him in all stages of the proceedings once the application itself has been filed. The filing of the application may be done by the Applicant itself, irrespective of whether they fulfil the requirements relating to a place of residence or a legal seat. To obtain a filing date, the application must comprise: I II III an indication that a European Patent is sought; information identifying the Applicant; a description of the invention (or reference to a previous application). 6

7 Further filing requirements include the payment of the filing and search fee, the designation of the inventor(s) and the filing of least one patent claim defining the matter for which protection is sought. These additional requirements may be fulfilled after a period of time from the filing date, as is defined in the implementing regulations and provisions of the EPC. The application should be filed in one of the official languages of the EPO, which are English, French or German. These languages are also the available languages of the proceedings, with the language of the application setting the official language of the proceedings. Applicants may file the original application in any language, but must then provide a translation into one of the official languages of the EPO within two months from the filing date. Claims fees are due for each claim after the 15th, and the set of claims should only include one independent claim per claim category (product, process, apparatus or use). Any set of claims with more than 15 claims incur significant additional claim fees for the sixteenth claim and beyond. From April 1, 2009, an application comprising more than 50 claims incurs an even much higher claim fee for the 51st and each subsequent claim. Applicants from countries which prefer the US style of claim drafting should be aware that under European practice claims may (and should) be multipledependent. This makes it possible to draft a European set of claims comprising a minimum number of independent claims and hopefully a reduced total number of claims, hence avoiding unnecessary claims fees and possible lack-of-unity objections. 7

8 Patentability Criteria For an invention to be patentable under European practice, it has to be industrially applicable, novel and inventive. In this way, the basic requirements correspond to those of most national patent laws worldwide. The requirement that the invention is novel has to be fulfilled over any pre-published prior art worldwide additionally this can include pre-filed but unpublished European and Euro-PCT applications. For ascertaining the presence of an inventive step, the EPO will usually apply a specific methodical approach: the so-called problem-solution approach, which is often supplemented with the couldwould approach. For specific details, please refer either to the Guidelines for Examination in the EPO, or ask us. It is further important to be aware that under European practice, certain subject matter is excluded by law from patenting. In particular, European patents cannot be obtained for scientific theories or mathematical algorithms, as well as for business methods and computer programs. It is also not possible to obtain a European patent for medical diagnostic or therapeutic methods, or for purely biological processes. In the field of business methods and computer-implemented inventions, European practice is a great deal more restrictive than other patent legislations, e.g. the United States. Furthermore, no change to the current practice can be expected in the near future. Having said this, however, for many softwarerelated inventions and inventions from the fields of medicine and biotechnology, there are appropriate techniques for drafting the application documents so as to obtain adequate protection in Europe. 8

9 Search After the EPO has assessed that a new application is formalistically acceptable, and assigned it a filing date, the EPO performs a search for relevant prior art. The results of the search are summarized in the Extended European Search Report (EESR), which is transmitted to the applicant or his representative. The EESR is accompanied by a Written Opinion on whether the application and the invention to which it relates meet the requirements of the EPC, and in particular whether the requirements of novelty and inventive step are met with regard to the relevant prior art. Preferably, the EESR is published together with the European patent application after 18 months, but frequently the publication of the EESR is delayed. In the EESR, the relevant pieces of prior art are classified into several categories, depending on the degree of relevance with respect to the original claims; it is further indicated to which of the claims each piece of prior art is considered relevant. The EESR, thurs, permits a first and detailed analysis which can be used for deciding whether proceeding with the application may be successful or not. If the applicant decides to pursue the application, the EESR with its Written Opinion provides a useful starting point communication as to the merits of the original claims, and may be used to shorten the examination time (provided that the examination procedure is started by filing the corresponding request and paying the examination fee). 9

10 Whilst the documents located in the search, together with their associated classifications, are published, the opinion part of the EESR will not be published. This section is instead accessible only through file inspection. With the publication of the EESR, a period of 6 months begins in which the applicant has to decide whether to continue with the European application or not. If the applicant decides to continue with the application, the request for substantive examination and payment of the corresponding fee must also be made during this time. For applications with a filing date prior to April 1, 2009, the applicant must, within this six month term, also select the relevant EPC Member States and pay the appropriate designation fee(s) therefor. Payment of 7 designation fees results in the designation of all Member States (those states as at the relevant filing date). At the same time, it is possible to select extension states, along with payment of the corresponding fees. For applications from April 1, 2009, a single fee designating all states except the Extension States will be payable, and no selection of individual states will be possible. 10

11 Substantive Examination Once a request for examination has been filed (or, in the case that a request for examination was made upon filing, the applicant has confirmed its intention to Proceed Further with the application into the examination phase), and the examination fee has been duly paid, a first Office Action discussing the acceptability of the application may be expected. This communication will typically discuss the novelty and inventiveness of the claims, as well as possible clarity issues, and can be expected on average within less than one year. The communication will typically be accompanied by a 4-month period in which the applicant must respond to the objections raised. If necessary, this deadline may be extended by a further 2 months to a total of 6 months. Beyond this, further extensions will only very exceptionally be granted, and only if the request is accompanied with good reasons. Should a positive EESR have been issued in the search phase, the only office action in the examination phase will be the issuance of the intention to grant the application (communication under Rule 71(3) EPC). If the applicant has responded to a negative EESR by amendment to the claims and other documents, the first Office Action will take such amendments into account. 11

12 If, after a response has been filed to the first Office Action, the Examiner still considers that the application is not in a condition for grant, he will continue with the examination procedure by issuing a (possibly final) second Office Action or by contacting the applicant, or representative thereof, personally. At any time during the examination, the applicant may request Oral Proceedings in order to present his case directly to the Examining Division. This request must not be ignored by the Examining Division, and Oral Proceedings must be granted if requested. 12

13 Grant Once the application documents are considered to be in an appropriate form which meet the requirements of the EPC, the EPO will communicate its Intention to Grant by means of the Rule 71(3) Communication (previously known as the Rule 51(4) Communication). With this communication of intention to grant the patent, the documents which will form the basis of the patent are forwarded to the applicant for his approval. Within a period of 4 months, which cannot be extended, a translation of the claims into the two other official languages of the EPO must be filed. Further, the grant fee, the printing fee and the claims fee (for each claim beyond the 15th which was not validly paid at the time of filing) must be paid. If the above requirements are fulfilled, the European patent will be granted and published, and the applicant is informed accordingly. An important impact of the publication of this grant is that the European patent is then, in principle, enforceable. After the EPO s decision to grant is published, the patent has to be validated in each state in which the patent is to be effective. This must be accomplished within a specific time limit, and results in a bundle of individual national patents. If this validation is not appropriately completed, the patent will most likely not be enforceable in that state. 13

14 With the introduction of the London Protocol, which entered into force on May 1, 2008, the provision of a translation into the respective national language is no longer necessary for several EPC Member States. Many Member States do not require a translation, and will instead accept an English version. In particular, no translation of the specification needs to be supplied for a European patent in France, Germany, the United Kingdom, as well as a few other member states. By contrast, at least Austria, Finland, Italy, Spain and Turkey require a full translation of the complete European patent specification into one of their official languages. For details, please refer to the national patent offices or ask us. Even if no translation of the patent is required, the appointment of a national or regional associate in the respective states is highly recommended. This will ensure a secure gateway for communication to and from the respective national or regional offices and may be extremely helpful in loss of rights discussions with said offices. 14

15 Opposition Irrespective of the validation in designated countries, any person may oppose a granted European patent within nine months from the publication of the Decision to Grant. The opposition against a European patent may only be based upon specific well-defined grounds, namely: (a) lack of patentability; (b) insufficient disclosure; and (c) extension of subject matter beyond the content of the application as filed. A lack of unity or a lack of clarity of the claims in the patent of the claims etc. do not form grounds for opposition, and cannot be used to prejudice the maintenance of the patent. Oral Proceedings will take place to conclude the opposition phase, if at least one of the parties requests them to be held. A decision as to whether the opposition prejudices the patent or not is made by three members of the EPO who form the Opposition Division. The costs of the opposition proceedings are usually borne by each party in the proceedings. 15

16 Limitation Since the revised EPC entered into force, a granted European patent can be limited in scope by request of the patentee. This becomes particular relevant on occasions when the patentee becomes aware of relevant state of the art, or on intended national revocation proceedings from a competitor, for example. Appeal Any decision made by the EPO during the examination, grant or opposition stage, may be appealed within two months from the notification of the decision. A substantiation setting out the grounds of the appeal has to be filed within four months from said notification. The boards of Appeal are fully independent bodies. Depending on the section and/or the division, respectively, which made the decision under appeal, the appeal will be dealt with by either the Judicial Board of Appeal or the Technical Board of Appeal. Prior to the revision of the EPC (with the introduction of the EPC 2000 ) the decisions of the Boards of Appeal were final, and only cases of common legal interest were referred to the Enlarged Board of Appeal. Within the EPC 2000 framework, the Enlarged Board of Appeal became an additional instance for reviewing the decisions made by the Boards of Appeal. This referral is predominantly, albeit, within the discretion of the responsible Technical or Judicial Board of Appeal. However, it should be considered, that the 16

17 applicant s right to be heard was not fulfilled, that the Board members were inappropriate, or that a further fundamental procedural violation occurred during the appeal proceedings, an affected party may file a petition for review of the original Board s decision with the Enlarged Board of Appeal. Divisional Applications Any pending European patent application may be divided into additional Divisional Applications, in a straightforward manner. A Divisional Application must incorporate subject matter which is unambiguously derivable from, and does not extend beyond, the content of the original, or parent application, as filed. As long as this requirement is met, the Divisional Application is deemed to have been filed on the same date as the parent application, and also claims and enjoys the same priority date as this original application. A Divisional Application is treated in exactly the same way as a normal application, and will be searched, published and examined as described previously. One of the main reasons for filing a Divisional Application is to overcome a perceived lack of unity in the parent application. If, for example, an application comprises a variety of solutions to several technical problems, the full subject matter of this application cannot be covered by a single patent. In order to obtain patent protection for each of these individual inventions, the applicant is well advised to file a Divisional Application and cover the subject matter with two or more patents. 17

18 A further possibility is that it is proving difficult to obtain a patent for certain subject matter in a pending application. By removing this subject matter into a Divisional Application, the parent application can focus on other aspects for which the grant of a patent is less problematic, thus gaining a patent at a much earlier date. It is, however, very important to note that a Divisional Application cannot be filed in order to fix deficiencies in the contents of an original application. The strict requirement that the subject matter of a Divisional Application cannot extend beyond that of the original application documents means that a Aivisional Application will necessarily still suffer from the same deficiencies as the parent. It is further important to bear in mind that a Divisional Application attracts the same official fees as the parent application. Furthermore, a Divisional Application is subject to the payment of the compound annuity fees from the filing, date of the parent application. In other words, all of the annuity fees which would have fallen due in the Divisional Application if it had been filed at the same time as the parent application fall due upon filing of the Divisional Application. This can mean a significant sum of money is due on Divisional Applications at filing. Effective from April 01, 2010, according to new Rule 36 EPC, the options to file divisionals will be timely restricted to certain periods after official actions have been issued. Specifically, a period of 24 months after the issuance of 18

19 a first substantive Office Action as to a pending application (or as to another divisional of the same family) will be valid. However, should the first substantive Office Action have been issued earlier than April 01, 2009, the due term will not expire before October 01, The EPO will not inform the applicant about the expiry of this term, thus meaning that it is very important to docket the files and watch the associated terms at the applicant s or representative s end. Furthermore, there will be an additional chance to file a divisional within 6 months after the Examining Division has presented a lack of unity objection. 19

20 The Patent Cooperation Treaty The International Phase The PCT facilitates the near world-wide protection of inventions, where protection is sought in various states all over the world. It allows the filing of a single patent application (an International Application ) for several PCT Member States, rather than having to file several separate national and/or regional patent applications. Such an International Application may also seek protection for the member states of the European Patent Convention, the African Regional Intellectual Property Organisation (ARIPO) and the Eurasian Patent Convention. It is important to appreciate, however, that the PCT is focused on providing a single coordinated filing and search and, if requested, (preliminary) examination of the applications for the protection of inventions, but will not lead to the issuance of a patent ( world patent ) itself. Within such proceedings, the International Bureau in Geneva (Switzerland), the WIPO, assumes the majority of administrative functions, without having any capabilities for performing a search and the substantive examination. In this regard, the EPO and selected national Patent Offices act on behalf of the International Bureau as the International Search Authority (ISA) or International Preliminary Examination Authority (IPEA). As previously mentioned, the International Bureau does not issue any PCT-patents, as these do not exist. The responsibility of the International Bureau ends with the application s entry into the so-called National (or Regional) Phases, i.e. national or regional prosecutions before national patent offices or the EPO, for example. If examination in front of these bodies has a positive result, this should lead to the issuance of a national or regional patent. 20

21 Application Requirements The applicant of an International Application must be a national/legal entity or resident of a PCT Member State. A PCT-Application may be filed either at the patent office of the Member State in which the applicant is a national/ legal entity, at a Regional Office like the EPO or directly at the International Bureau in Geneva, depending on the directives issued by the respective Member State. The language in which an International Application must be filed depends on the Receiving Office, i.e. the office with which the International Application is filed. Some receiving offices allow the applicant to choose between two or more languages (e.g.: the EPO allows German, English or French). If the International Application is filed in a language other than Chinese, English, French, German, Japanese, Russian or Spanish, which are the languages in which International Applications can be published, or if the filing language is not one of the languages required by the International Searching Authority, a translation of the application will need to be provided. When filing a PCT application, a transmittal fee and an international filing fee are to be paid. The designation of selected member states was abolished some time ago, and presently a PCT application automatically includes an option for all PCT Member States and for every kind of protection which is available by way of the designation of that state. This does not, however, prevent the applicant from withdrawing specific designations, as required. 21

22 International Search/Amendments The International Phase covers the time period between filing a PCT-application and its subsequent entry into the National or Regional Phases. During the International Phase, the application may not be processed by any of the offices of the member states in their capacity as national or regional offices. Of course, a national or regional patent office acting as the International Search Authority (ISA) has to establish the International Search Report (ISR) and the choice of which patent office(s) is/are available to the applicant for such a task is determined by national regulations. For many countries, including the EPC Member States, Japan and the United States, the EPO may be selected as the ISA. The ISR will, as a rule, be available within 9 months from the priority date of the application. The International patent application is published 18 months after the earliest priority date, and will therefore generally be published with the ISR. According to PCT practice, the ISR is combined with a written opinion of the ISA (WOISA) which is purely for the applicant s information and relates to core issues of patentability only. This opinion part of the ISR is not published, and is only transmitted to the International Bureau and, if applicable, to the IPEA. The WOISA is not open to the public until 30 months after the priority date. 22

23 International Preliminary Examination (IPE) In response to the International Search Report, the applicant is allowed to make a single amendment to the claims (and only the claims), in order to give the application a better start in its National or Regional Phases. These amendments will hopefully also serve to accelerate the examination procedure during these later phases. Should the applicant decide to file a Demand for an International Preliminary Examination, which will be explained in more detail hereinafter, the applicant is able to make amendments to all parts of the International Application, before the entry into the National or Regional Phases. A time limit for filing the Demand exists, and is either: 3 months from the issuance of the ISR and accompanying written opinion; or 22 months from the priority date, whichever expires later. In addition to the ISR and the WOISA, an International Preliminary Examination may be requested (this is done by filing a Demand and paying a requisite fee). This is primarily so that the applicant can obtain a preliminary and non-binding opinion as to whether the claimed invention is novel, involves an inventive step and is industrially applicable. One major reason for requesting an International Preliminary Examination is to obtain an official opinion on the questions of novelty, inventive step and industrial applicability. A second major reason is that during the Preliminary 23

24 Examination, the applicant may amend the claims, the description and the drawings as often as is deemed necessary, whilst in communication with the Examiner at the International Preliminary Examination Authority (IPEA). As is clear from the above, the International Preliminary Examination provides the opportunity to react to deficiencies mentioned in the WOISA, with the advantage that any amendments may be recognized by the national and/or regional authorities in the following national and/or regional proceedings. On the other hand, as the search report is accompanied by the Written Opinion, International Preliminary Examination is only recommended in a few rare cases. Normally it is not necessary. 24

25 National/Regional Phase Entry The second of the two main phases of the PCT-procedure is called the national phase or regional phase. If the office of, or acting for, the Member State before which the International Patent Application shall be processed is a national office, this phase is called the national phase ; by contrast, if the office is a regional office (like the EPO), this phase is called the regional phase. The national/regional phase requires that certain acts are performed prior to the expiry of a deadline, this deadline expiring typically 30 or 31-months after the earliest priority date. At the very least, these acts include: the appointment of an authorised representative; the payment of fees; and, if necessary, the filing of a translation of the application text (this includes the claims, description, abstract and drawings). If the Regional Phase is entered before the EPO, both designation fees and the examination fee, according to the EPC, must be paid, and the Request for Substantive Examination must be filed. If the EPO was not the International Searching Authority (ISA) during the PCT phase, a Supplementary European Search Report will be drawn up in addition to the International Search Report (ISR). Depending upon the office which acted as the ISA, an additional search fee will have to be paid for this SESR. For German National Phase entry, the Examination Request and the payment of the examination fee may be deferred for a period of 7 years. 25

26 Since the applicant bears the sole responsibility for performing the required acts for entry into the national/regional phase in due time, and since these acts vary from office to office, it is crucial to have a sound knowledge of the system and requirements for each office. In these national and/or regional phases, substantive examination of the PCTapplication is performed on the basis of the respective national or regional patent acts. During such examination, the respective examination authorities will draw up their own Office Actions relating to the novelty, inventive step and industrial applicability of the application. In many cases, however, these will be based, at least in part, on the WOISA or the IPER respectively. 26

27 National Patents in European Countries When considering patent protection in Europe, the key question for the applicant is whether a single European patent application, or several national patent applications for the countries of interest, should be filed. Generally, it pays to choose a European patent application if coverage of 3 or more EPC Member States is required. This way is, however, not rewarding if only one or two Member states are of interest. On the other hand, national patent applications in European countries, particularly if they do not claim Priority, may have certain advantages in that the overall time until the issuance of the patent may be shorter. This is, however, subject to the condition that a request for substantive examination is submitted together with the filing documents. If an applicant wishes to obtain patent protection in at least an important part of the common European market, both the national prosecution and litigation practices as well as the economical strength and the number of inhabitants of the European country should be taken into account. If, for example, an applicant wishes to obtain a certain degree of protection for a mass product at low cost, it may consider filing a patent application in a country having a large number of inhabitants, an experienced Patent Office, and a well-organized, time and cost-efficient patent litigation system, such as Germany. Different requirements and necessities from a resultant patent will,of course, lead to different selection criteria, such as the necessity of applying for a patent in countries where important competitors are seated or particularly active. 27

28 Although a variety of long-lasting national traditions exist for each European country with regard to their own patent practices, the influence of the EPC has provided for a relatively high degree of harmonization of such national patent laws and procedural regulations. The scope of this brochure is not adequate for explaining in detail all aspects of the national prosecution systems, and so any particular issues in this regard should be dealt with in personal consultation with us. 28

29 Utility Models in European Countries Within many member states of the EU, it is possible to obtain protection for intellectual property with technical aspects by means of a Utility Model; an option which is in addition to patent protection. These states are: Austria, Bulgaria, the Czech Republic, Finland, France, Germany, Greece, Denmark, Estonia, Ireland, Italy, Portugal, Slovenia, Spain, Hungary, Poland, and Slovakia. Some European countries (such as Germany and Austria) also provide the possibility of branching-off a Utility Model from a pending patent application, be it a national, European or even a PCT application. This option may be of particular interest, if the invention for which the patent application is being prosecuted is being used by a third party, and a swift issuance of a patent is not expected. A Utility Model application which is branched-off from a pending patent application in Germany, will normally be registered within 2 months; this registration provides the registrant with cease of infringement, information and damage claims. A further advantage of a Utility Model in Germany is that the possibility exists for amending the scope even after registration; this amendment is undertaken by submitting amended claims to the official file of the Utility model. This allows the registrant the opportunity to tailor the claims of a protective right to cover an alleged infringement, far more than might be possible with a associated patent. 29

30 In general, the application requirements, as well as the criteria for valid Utility Model protection, are quite similar to those in patent practice. Certain significant differences exist, however, between Utility Models and patents. For example, in Germany Utility Models are usually only available for an apparatus (which has in the year 2008 been extended to include electrical circuits and electronic devices), and cannot confer protection for methods or chemical products. Further, the maximum period of protection is limited to 10 years. Finally, a Utility Model is not an examined or proofed intellectual property right, as such it is very important to deliberate carefully prior to enforcing a Utility Model right. Addition-ally, to reduce the danger of infringing a third party s claims, it is advisable to perform a search to ensure that the Utility Model meets the requirements for both novelty and inventiveness. Should a third party dispute the validity of a Utility Model, they can file a request for cancellation proceedings. At this stage, the Utility Model will be checked to see if it does possess the requisite novelty and inventiveness. It is important to note that the party in these proceedings which is considered to be the losing party, must bear the full costs, including those associated with the other party. Whilst the official fees for Utility Models are lower than those for patents, the overall costs (including a patent attorney s work) are not much lower than those incurred for a national patent. Primarily, the major advantages of a Utility Model are the accelerated availability and (at least in Germany) the flexibility of handling and enforcing it. 30

31 All in all, the enforcement of rights by means of a Utility Model carries with it certain risks. Further, requesting an interim injunction on the basis of a Utility Model will often prove unsuccessful, primarily as a result of the non-proofed character of the Utility Model. As such, it is necessary to consider in great detail what sort of technical protection right should be chosen in each individual case. In this regard, do not hesitate to contact us for advice. 31

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