“Can we protect processes developed within the company?”
B4B readers ask, our industry experts from the region answer: “Is it possible to have certain procedures for flexible working time models that we have developed in our group and the name for them protected? We want to advertise it in recruiting and avoid the competition simply copying it.” Ulrich Wohlfarth, patent attorney at CHARRIER RAPP & LIEBAU, knows the answer.
This question touches on two fundamentally different industrial property rights, namely on the one hand the protection of a process (sequence) by technical property rights and on the other hand the protection of the trademark under which this process is used.
Patent protection for a process
A process can in principle be protected by a patent, whereby in addition to the classic patenting requirements of novelty and inventive step, in the present case the so-called technicality is also added. Even if the Patent Act does not explicitly mention this, the process to be protected must be in the field of technology. In this context, manufacturing processes with which a certain product is manufactured or working processes, which thus merely concern the functional operating sequence of a device, can be claimed.
Problem: the inventive step
In contrast, plans, rules and procedures for business activities are not in themselves amenable to patent protection. In the case of a method for flexible working time models that exclusively concerns their design per se, the hurdle of technicality is therefore unlikely to be overcome. Patent protection could possibly still be obtained for the fact that, with the aid of technical means such as a computer, the process, its implementation on the computer or the program embodied on a data carrier are protected. In this case, however, the relevant new solution features would also have to lie in the field of technology or at least solve a technical problem, since as a rule only the technical solution features can ensure the so-called inventive step. If the essential solution features are in the area of the usual programming of a computer, this is usually not sufficient to protect such a business method.
The registered trademark protects the name
In contrast, the registered trademark is the means of choice for protecting the name under which the flexible working time model is to be offered. A German trademark must be filed with the German Patent and Trademark Office for Germany, and the Union trademark must be filed with the European Intellectual Property Office for all EU states. In addition, the so-called international registration, also called IR trademark, is possible for numerous other states. In this case, registration always confers protection on the trademark for specific goods and services named in the application.
However, the brand name must also meet certain requirements in order to be registered, in particular it must be distinctive and non-descriptive. This is because, in a first step, the above-mentioned trademark offices examine the so-called absolute grounds for refusal as standard, in order to prevent, for example, common technical terms from being protected for the goods and services claimed in the trademark application.
If the trademark passes this first step successfully, in a second step third parties may oppose the trademark by means of an opposition, especially from older, usually identical or similar trademarks or other rights to a name. It is therefore advisable to search for such earlier rights before filing the trademark application. If the trademark survives this step, it is not only a powerful weapon against the misuse of the trademark by third parties, but also protects the own use of the trademark in a simple way.
Do you have any questions for patent attorney Ulrich Wohlfahrt, or would you like more in-depth advice?
