Term and Meaning of the BPatG
Definition of BPatG
The abbreviation BPatG stands for the “Patent Act on the Federal Patent Court”, more precisely for the Act on the Federal Patent Court. The BPatG forms the central legal basis for the organization, tasks, and procedures of the Federal Patent Court in Germany. It sets out in detail the responsibilities and procedures of this specialized judicial body in patent law as well as in other matters concerning industrial property rights.
The Federal Patent Court operates as an independent federal court based in Munich and is primarily responsible for the legal review of decisions made by the German Patent and Trademark Office (DPMA).
Historical Development of the BPatG
Origin and Legal Foundations
The Federal Patent Court was established by the Act of 1 July 1961, which replaced the previous system of patent appeal boards at the German Patent Office. The current version of the BPatG can be found in the Act on the Federal Patent Court (BGBl. I p. 527), which is regularly amended and adapted to developments in German patent law.
Legal Status in the German Court System
Alongside the Federal Court of Justice, the Federal Patent Court is the only federal court that focuses exclusively on industrial property rights. Its proceedings concern, in particular, the Patent Act (PatG), the Utility Model Act (GebrMG), the Trademark Act (MarkenG), the Plant Variety Protection Act (SortSchG), and other special regulations.
Tasks and Jurisdiction According to the BPatG
Substantive Jurisdiction
The BPatG particularly decides on:
- Appeals against decisions of the German Patent and Trademark Office (DPMA) in patent, trademark, utility model, and other official industrial property right proceedings
- Patent nullity actions and compulsory license proceedings in patent law
- Cancellation procedures for trademarks and utility models registered by the DPMA
Pursuant to the BPatG, the court’s decisional authority covers both legal and factual matters.
Types of Proceedings before the Federal Patent Court
The BPatG distinguishes between various types of proceedings:
- Appeal proceedings: Review of decisions by the DPMA
- Nullity proceedings: Clarification of whether a granted patent should have been issued at all
- Cancellation proceedings: Review of the protectability of trademarks or utility models
- Compulsory license and opposition proceedings: Decision in disputes over rights of use or objections to the registration of industrial property rights
Organization and Structure of the Federal Patent Court under the BPatG
Structure and Panels
The Federal Patent Court is divided into chambers known as Senates, each staffed with legally and technically trained members—often including both legal and technical judges. This dual system is a unique feature compared to other courts and takes into account the high technical complexity of many intellectual property disputes.
The precise composition of the Senates, including the requirements for their members, is comprehensively regulated in the BPatG. Each Senate is usually composed of a presiding judge, two additional legally qualified members, and two technical members.
Administrative Structure
The President of the Federal Patent Court, also named in the BPatG, represents the court externally and is responsible for administrative tasks. The case allocation among the Senates is set out in a schedule of allocation that is drawn up anew each year.
Procedures and Legal Remedies under the BPatG
Procedure Course
The course of proceedings before the BPatG is precisely regulated by the BPatG. The principles of procedure are designed to strictly observe the requirements of the rule of law (e.g., the right to be heard, independence of judges).
In formal proceedings,
- applications are always submitted in writing,
- evidence is taken and oral hearings are conducted,
- and decisions, including written reasons for judgments, are published.
Appellate Instances
Decisions of the Federal Patent Court may be appealed in certain cases via legal complaint or revision before the Federal Court of Justice. The prerequisites and deadlines for this are also defined in the BPatG. This ensures comprehensive review of BPatG case law and a uniform interpretation of industrial property protection.
Importance of the BPatG for Industrial Property Protection
As a central provision in the German legal system, the BPatG is of significant importance for innovation and the economy. It ensures review and continued protection of technical inventions, trademarks, and designs. Its decisions shape the interpretation of the Patent Act and accompanying property rights.
Literature and Sources
- Act on the Federal Patent Court (BPatG) [gesetze-im-internet.de/BPatG]
- Federal Patent Court: Annual Reports and Publications
- German Patent Law Literature: Commentary and textbooks, e.g., Götting/Nordemann, BeckOK Markenrecht
The BPatG creates the essential legal framework for the structure and procedure of the Federal Patent Court and is a fundamental component of the system of legal protection for intellectual property in Germany. The enforcement, preservation, and continued existence of industrial property rights are largely ensured within the framework of this law.
Frequently Asked Questions
What legal remedies are available against decisions of the BPatG?
After a decision is issued by the Federal Patent Court (BPatG), it is generally possible to file legal remedies against certain decisions. The main remedies are the appeal (Beschwerde) and, in some cases, the legal complaint (Rechtsbeschwerde) or appeal (Berufung). For example, against decisions in opposition proceedings against a patent, an appeal to the BPatG itself is possible. Against decisions in appeal proceedings made by the BPatG as an appellate court, a legal complaint to the Federal Court of Justice (BGH) can be lodged, provided this is covered by the Patent Act (PatG), the Utility Model Act (GebrMG), or the Trademark Act (MarkenG). It is important to observe the respective deadlines, such as the one-month appeal period according to § 73 (2) PatG. For judgments in patent nullity matters, only an appeal to the Federal Court of Justice is permitted. It is advisable to check the specific type of proceedings and the relevant legal provisions to determine the correct remedy.
In which cases does the BPatG have jurisdiction over patent nullity actions?
Jurisdiction of the Federal Patent Court for patent nullity actions is set out in § 81 (1) PatG. According to this, only the BPatG, based in Munich, has first-instance jurisdiction for actions seeking the annulment of a German patent or the German part of a European patent. The same applies to partial nullity actions. The BPatG examines the validity of a granted patent both as regards patentability (novelty, inventive step, and industrial applicability) and disclosure and impermissible extension. The party wishing to file a nullity action must specify the concrete grounds for nullity pursuant to § 22 PatG.
How does the procedure before the BPatG work in trademark appeal cases?
An appeal against decisions of the German Patent and Trademark Office (DPMA) in connection with trademarks is referred to the BPatG after being lodged. The procedure is predominantly in writing, although the court may, at its discretion, schedule an oral hearing (§ 69 MarkenG). The parties are given the opportunity to comment and submit further documents. The procedure is not free of charge; court fees according to the Court Costs Act (GKG) and, where applicable, expenses will be incurred. The court’s decisions are given by order; in cases of fundamental importance or divergence from case law, an appeal to the Federal Court of Justice (BGH) may be permitted (§ 83 MarkenG).
What role does the BPatG play in opposition proceedings against patents?
The BPatG acts when an appeal is filed against a decision made by the German Patent and Trademark Office (DPMA) following an opposition procedure. In these so-called appeal proceedings, it reviews whether the DPMA’s decision was lawful and materially correct. The BPatG may set aside, amend, or uphold the challenged decision. Both the patent proprietor and the opponent are parties to the proceedings. Generally, decisions are taken based on the record, and the court will only schedule an oral hearing at its discretion (§ 79 (3) PatG).
What deadlines must be observed in proceedings before the BPatG?
There are numerous deadlines of substantial legal significance in proceedings before the Federal Patent Court. The most important include the deadline for filing an appeal (generally one month after service of the decision), deadlines for substantiating legal remedies (often also one month, though deviating rules may apply), and deadlines for responding to the other party’s submissions. Nullity actions can be brought at any time during the patent’s term. Missed deadlines may, in certain exceptional circumstances, be remedied by an application for reinstatement provided legal requirements, in particular lack of fault, are met (§ 123 PatG).
Are proceedings before the BPatG public?
As a rule, oral hearings before the Federal Patent Court are held in public, § 53 (1) Federal Patent Court Act (BPatG). This means that anyone interested may attend, unless the court excludes the public in individual cases for special statutory reasons (e.g., for the protection of trade or business secrets in accordance with § 53 (2) BPatG). The announcement of the decision is also public; however, the written judgment is not generally accessible, but is only served to the parties involved. Written procedural steps, such as exchanges of pleadings, are not public.
