TIMESTAMPING ON THE BASIS OF BLOCKCHAIN TECHNOLOGY
We are currently working on a way to provide you with unchangeable and unforgeable time stamps based on decentralized block chain technology. These time stamps, also called “timestamps” in the language of cryptography, which indicate the time of creation of new blocks in the block chain, provide a secure date proof, which can hardly be doubted even by authorities and courts. This security results from the fact that the block chain is stored in full length by each node of the decentralized network and is automatically synchronized block by block. A change of a timestamp would therefore require the consent of a majority of all nodes.
Although national and international intellectual property law is an extremely complex legal area and we cannot always say with certainty how your case will turn out, proving what you have created or used and when will be of great help. We provide this proof in a simple and cost-effective way so that you can protect your work early and, above all, routinely.
Right of prior use
In Germany, the “First-to-File” principle applies, i.e. the patent is usually granted to the party who first filed it with the German Patent and Trademark Office. There is, however, an exception to this rule in § 12 PatG, because according to it the patent does not have any effect against the person who has already used the invention to be protected by the patent before the patent application was filed.
The German Federal Court of Justice (BGH) has stated in a judgement from 2012 that the act of use or event required for the acquisition of a right of prior use according to § 12 PatG requires that the person acting has acquired independent possession of the invention. Possession of an invention is given if the technical teaching resulting from the task and solution is objectively complete and subjectively recognized in such a way that the actual execution of the invention is possible. Such knowledge is lacking if the technical action has not yet gone beyond the stage of experiments (BGH, judgement of 12.06.2012 – X ZR 131/09 – Desmopressin).
If an inventor has such a right of prior use, he is authorized under § 12 (1) 2 PatG to exploit the invention for the needs of his own business in his own or other workshops.
In practice, it can be difficult to prove when one came into possession of the invention and that one has ever been in possession of the invention. In order to overcome this obstacle more easily, O&P Timestamping is an option that allows you to provide regular updates on your developments with a block chain-based timestamp.
A patent for an invention can only be granted if the invention or what is to be protected by the patent is new and inventive at the time of the application according to §§ 3, 4 PatG, among others. Accordingly, the granting procedure examines whether there is already prior art for the invention to be protected which describes exactly this invention, or whether it would have been easy for a skilled person to arrive at the invention based on this prior art.
In practice, it happens more often that whitepapers, brochures, technical data sheets, presentations or the like published by companies are counterproductive to an invention for which a patent is pending (or even to the granted patent) or have suggested the invention. Due to missing or easily subsequently amendable/falsifiable publication data, it is then often difficult to prove that the publication actually took place before the patent application was filed.
Especially if you as a company are concerned that a patent is not granted for the competitor’s invention because you would otherwise commit an infringing act or your technical freedom of development would be too strongly restricted, such problems can be particularly painful when it comes to proving the date of publication.
Here, too, O&P-Timestamping offers you the possibility of securely time-stamping your publications.
Proof of use
If you want to enforce the rights to your trademarks, the trademarks must in principle have been used in a way that preserves the rights. With regard to the question of when a trademark is considered to have been used in a way that preserves the rights, a particularly extensive and confusing body of case law has developed over the last few decades, which sometimes leads to differing opinions among the authorities. In addition, the legal basis, especially with regard to the different periods of use, which must be considered for the question of whether rights-preserving use has been made, is also very complex and demands a great deal of patience from the attentive reader.
In order to answer the question of whether the trademark has been used in a way that preserves rights, the DPMA, the BPatG or the civil courts examine who has used the trademark, in what concrete form (how?) and for which concrete goods and services (what for?) it has been used. In addition, it is examined within which periods of time (when?) which sales were achieved (what?) and whether the trademark was used in Germany (where?).
With all these questions, your last concern should be to prove when your evidence originated. O&P-Timestamping can also help you here.