The Interpretation of Patent Claims in Germany

Extract

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The Interpretation of Patent Claims in Germany

I. Historical development of the principles of patent law in Germany

Before the era of the German Patent Act 1981, which after a number of changes is in its current version valid today, the principles for determining the scope of protection of a patent were subject to a development of interaction of granting practice, legal doctrines and jurisdiction.

The first German patent act of 1877 did not yet prescribe any special wording in the patent claim for the delimitation of the scope of protection. In the practice of the time, however, the inclusion of patent claims after the description was soon being established. Thus the patent act of 1891 already included the legal basis for this practice which read: "The patent claim shall indicate what (as being patentable) is to be protected." In these years, the Reichspatentamt already determined in the granting procedure the "subject matter of the invention" as well as the "scope of protection".

The so-called Hartig's doctrine demanded that the delimitation of what was not to fall under the protection was to take place in the patent claim. A claim had to be consist of a descriptive term, an indication of the features regarded as being essential, and a formulation of the invention in one single sentence, as well as with a clear definition of what is delimitating the novelty of the subject matter of the invention from the prior knowledge. Isay found in his later teaching, that it was an impossible task to assign to the patent claim in the granting procedure the delimitation of the scope of protection. Only in an infringement procedure the court was to establish the sc...

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