National phase entry - Germany adopts 31-month time limit
Germany offers an outstanding system for IP protection – its patent and trade mark office (the DPMA) is the largest national IP office in Europe and fifth largest in the world. Of 67,432 patent applications filed at the DPMA in 2019 and 62,105 patent applications filed in 2020, 7,507 (11.1 %) and 7525 (12.1 %), respectively, were national phases of international (Patent Cooperation Treaty - PCT) patent applications. Of these national phase applications, 6,406 (85.3 %) in 2019 and 6354 (84.4 %) were filed for applicants from abroad (according to the DPMA Annual Report 2020).
For many years, the (non-extendable) time limit for entering the national phase at the DPMA was 30 months from the relevant date (that is, the international filing date or, in case that priority is claimed, the earliest priority date), irrespective of entering the national phase via Chapter I PCT with the DPMA acting as designated office, or via Chapter II PCT with the DPMA acting as elected office.
The Second Act on the Simplification and Modernization of Patent Act of 10 August 2021 has simplified and modernised the Patent Act and other laws in the field of industrial property protection, including Article III of the Act on International Patent Conventions (the IntPatÜbkG), relating to proceedings under the PCT.
From 01 May 2022 onwards, the time limit for entering the national phase at the DPMA is 31 months from the relevant date.
The DPMA intends to apply the amended provisions to all PCT applications for which the previously applicable 30-month time limit has not already expired before 01 May 2022 (source, Notice No. 3/2022 of the President). Having said that, for PCT applications for which the previously applicable 30-month time limit expires on Saturday, 30 April 2022, the time limit for entering the national phase at the DPMA extends automatically to the next working day, which will be Monday, 02 May 2022 (Section 193 German Civil Code).
Thus, for entry of the national phase at the DPMA, the same 31-month time limit applies as for entry of the regional phase at the European Patent Office (EPO) and entry of the national phase at the UK Intellectual Property Office (UKIPO).
The longer, harmonised time limit not only provides for more time of decision-making, but also reduces haste and waste. Especially applicants from abroad, whose national phase applications very often require certified or authorised German translations of the corresponding PCT publications, can benefit from the longer time limit.
Moreover, with reference to imminent developments regarding European patents and European patent with unitary effect (unitary patents), Germany’s adoption of the 31-month time limit for national phase entry may provide applicants with additional leeway.
Useful link
DPMA Annual Report 2020 (PDF download): https://dycip.com/dpma-ar2020
