R
Research privilege
According to §9 PatG, only the patent holder may use the patented invention - all others are prohibited. Exceptions can be found in §11 PatG (see below). In the scientific field, the research or experimental privilege (Sec. 11 (2)) is particularly relevant. However, the experimental privilege does not mean that patents can be disregarded in research at state or non-profit research institutes, since the privilege does not regulate the research per se, but the framework in which it takes place. Experiments falling under §11(2) can serve both the purpose of obtaining research results and purely commercial interests.
Permitted acts of research are those experiments which directly concern the invention ("research on the subject matter"). This concerns experiments which are intended to clarify whether or how a patent-protected invention works or can be further developed. It also includes clinical trials of active substances in the context of drug approvals or trials designed to test their suitability for treating other diseases.
Accordingly, research on the subject matter of the patent is permitted - but not on the subject matter of the patent. The prohibitive effect of the patent extends to all work which uses the protected invention as a vehicle, i.e. in which the invention is used as a means of obtaining knowledge in another field. For example, patent protected methods may not be used to produce experimental designs. The use of devices which circumvent patented products or processes is also covered by patent protection - even and especially if the use is for research in a thematically distant field.
Permitted (§11PatG)
The effect of the patent shall not extend to
1. acts carried out in the private sector for non-commercial purposes
2. acts done for experimental purposes relating to the subject-matter of the patented invention;
2a. the use of biological material for the purpose of breeding, discovering and developing a new plant variety;
2b. Studies and tests and the resulting practical requirements necessary for obtaining a marketing authorisation for medicinal products in the European Union or a marketing authorisation under pharmaceutical legislation in the Member States of the European Union or in third countries;
3. the direct individual preparation of medicinal products in pharmacies on the basis of a medical prescription and acts relating to the medicinal products thus prepared;
Prohibited (§9PatG)
...patent... ...only the patent holder... use it. It is forbidden for any third party...
1. a product... manufacture, offer, market or use a product or ... import or possess it;
2. a process... or ... offer for application within the scope of this Act;
3. which, by a procedure... offer, place on the market or use the product manufactured by a process or ... import or possess.
(Linked page in German.)