Secret protection procedure – What are secret patents and what effect do they have?

Pursuant to § 50(1) PatG, publication is prohibited by the competent examining section for inventions that concern a state secret. Prior to this official order, however, the competent supreme federal authority must be heard. The procedure thus goes through several examination instances to determine whether the subject matter of the invention actually concerns a state secret as defined in § 93(1) StGB.


Accordingly, state secrets are facts, objects or knowledge which are only accessible to a limited number of people, and which must be kept secret from a foreign power to prevent the risk of serious detriment to the external security of the Federal Republic of Germany. The requirement for a state secret is thus set very high, so that the application of § 50(1) PatG only occurs in very rare cases.


The ordering of a procedure under § 50(1) PatG has far-reaching consequences for both the applicant and his representative, since as a consequence the rules for handling the classified documents must comply with the existing security regulations. For example, processing may only be carried out by a representative with a security clearance. The effort involved is very high, so that the question could arise whether this is justified in weighing the interests of the applicant.


For secret patents and patent applications, a publication fiction is assumed despite the secrecy, so that corresponding patent applications and patents also count as prior art after 18 months and have a corresponding effect. Accordingly, these IP rights are relevant for subsequent examination, opposition and nullity proceedings of other patent applications and patents. However, it must be pointed out that they can only develop their effect territorially within the territory of the Federal Republic of Germany.


The rights given under § 9 PatG can also be asserted by a secret patent. In this respect, the rights of secret patents are equal to those of other patents, which justifies their value despite the increased expense.


In the future, however, the question will arise as to how the problem of secret patents can be handled within the scope of the unitary patent and its enforcement or in nullity proceedings before the unitary patent court. In any case, a corresponding secret procedure has not yet been clearly regulated within the framework of the Unitary Patent Court.


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If you have any questions about the protection of secrets, please contact us.


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