Translation of "Vorbenutzungsrecht" in English

We take this as an opportunity to summarise the current case law on the German right of prior use.

Furthermore the draft Community patent regulation provides for a right based on the prior use of the invention (Articles 12, 36).

Consideration should be given to harmonization of the right of prior use.

Vast local ended with prior use of 23 people's garages, 1 office, 3 services and car wash

The right of prior use shall entitle the third person to exploit the design for the purposes for which its use had been effected, or for which serious and effective preparations had been made, before the filing or priority date of the registered Community design.

The right of prior use shall not extend to granting a licence to another person to exploit the design.

The right of prior use cannot be transferred except, where the third person is a business, along with that part of the business in the course of which the act was done or the preparations were made.

The Court of Justice should have jurisdiction in disputes relating to the infringement or the validity of a Community patent and a Community supplementary protection certificate, the use of the invention after the publication of the Community patent application, the right based on prior use of the invention, provisional and evidence-protection measures in the subject matter conferred, damages or compensation in the situations referred to above and orders of a penalty payment in case of non-compliance with a decision or order constituting an obligation to act or to abstain from an act.

The Community patent may be the subject of invalidity or infringement proceedings, of action for a declaration of non-infringement, of proceedings relating to the use of the patent or to the right based on prior use of the patent, or of requests for limitation, counterclaims for invalidity or applications for a declaration of lapse.

A right of prior use shall exist for any third person who can establish that before the date of filing of the application; or if a priority is claimed, before the date of priority, he has in good faith commenced use within the Community, or has made serious and effective preparations to that end, of a design included within the scope of protection of a registered Community design, which has not been copied from the latter.

These two Articles lay down the conditions governing actions relating to use of the invention over the course of the period referred to in Article 11 of this Regulation and to the right based on prior use referred to in Article 12 of this Regulation, as well as specifying which persons may initiate such an action.

Under point (b), jurisdiction is conferred for disputes relating to the use of the invention after the publication of the Community patent application and the right based on prior use of the invention.

Consideration should be given to harmonization of the right of prior use and the period of grace (délai de grâce).

Proceedings relating to use, to the right based on prior use, to infringement and to damages referred to in this section shall be barred after five years have elapsed from the date on which the facts justifying proceedings emerged, or, if the requesting party was unaware of those facts at the time they emerged, from the date on which he became aware of them or should have become aware of them.

This was in line with the fact that the right of prior use covered the exchange of distribution partners without increasing their number.

The parties concur that the disclosure or communication of confidential information shall in no way establish prior printed publication or right of prior use within the meaning of German protection-of-inventions legislation (Patent- und Gebrauchsmustergesetz).

A suspected patent infringer is not entitled to a right of prior use if there is a contractual agreement between the suspected patent infringer and the inventor and if the suspected patent infringer has gained knowledge of the invention through the contractual agreement.

Apart from nullity and infringement, the CIPC shall also have exclusive jurisdiction for actions for a declaration of non-infringement, limitation (here is a conflict between the present draft and the planned EPC revision, which enables the EPO for such limitations) or for proceedings to the right of prior use of a Community patent.

In accordance with the case law on patent law, the BGH comes to the conclusion that only preparatory acts in Germany can establish a right of prior use (BGH, judgment of 29 June 2017, Ref.

The right of prior use is linked to the business which is permitted to use the invention, and can therefore only be inherited or sold together with the business.

Based on the same idea of the exercised possession of an invention, the right of prior use in principle only covers those embodiments which are actually used or whose immediate use has been prepared.

If the use started after this date, that is after publication of the lapse of the earlier application in the European Patent Bulletin, third parties cannot invoke a national right of right to continued use with respect to the European patent precisely because this right relates to prior use and not use between the date of lapse and revival.

However, the findings of the Federal Supreme Court in a German design law proceeding on the question of whether a right of prior use resulting from preparatory acts requires domestic action, or whether preparatory acts abroad are sufficient, are also interesting.

The patent inventor who invokes the right of prior use is entitled to exploit the invention for the needs of his own business in his own workshops or those of others.

The right of prior use for a patent is based on § 12 German Patent Act (PatG), according to which the property right cannot be applied against the person who has already used the invention before someone else has had it patented.

The supply of objects to a third party to carry out a patent-protected process, against which the right of prior use is asserted, is basically an indirect act of prior use.