Lawyer Monthly Magazine - March 2020 Edition

Legal Game Changers Dr Andreas Peters, Hannke Bittner & Partner patent, the first to file (FTF), the first to invent (FTI) as well as the first-inventor- to-file (FITF) concepts exist. FTI are legal concepts that define who has the right to the grant of a patent for an invention. There is an important difference between the strict nature of the FTF under the European Patent Convention (EPC) (and also the German Patent Act) and the FITF system of the United States Patent and Trademark Office (USPTO). The USPTO FITF system allows early disclosers some “grace” time before they need to file a patent, whereas the EPO does not recognise any grace period, so early application under the FITF provisions is an absolute must for a later EPO patent. Art. 60 I S.2 EPC assigns the decision about the material right to an application to the national courts. The protocol of recognition decides which court is responsible. In Germany, the right of vindication of a European patent application against a non-entitled party is by means of Art. 60 I S. 1 EPC, Art. II § 5 International Patent Cooperation Treaty enforced. In the German Patent Law, the one that is the “actual” inventor (you could say the first inventor) could file a suit, by means of a vindication suit, before of the responsible district court. To this 77 MAR 2020 | WWW.LAWYER-MONTHLY.COM Dr Andreas Peters, Senior Partner at Hannke Bittner & Partner, is a German and European Patent Attorney and has been the IP area since 2008, especially in the areas of Patent Prosecution and Patent Litigation. After having received his master’s degree in physics with honours and having graduated as a fellow of a highly recognised gifted scholarship, he obtained his PhD in physics, to eventually attend Law School in order to become a German and European Patent Attorney. Moreover, Dr Peters has acquired an intermediate diploma in Business Administration, as well as an intermediate diploma in Microsystems Technology, thus enabling him to advise clients not only entrepreneurially but also engineer-wise. Hitherto, he has successfully granted hundreds of patents granting procedures and also operates in patent infringement trials at the Federal Patent Court, as well as at the Federal Supreme Court.