Monday 17 March 2014

Maltese IP Attorneys are no Patentanwalt

The Federal Court of Justice BGH has received an appeal against a decision of the Bundespatentgericht. The appeal was filed by a person registered as "IP Attorney" at the Intellectual Property Office of the Republic of Malta, but not as a German Patentanwalt.

The appellant's representative invoked the Directive 2006/123/EC of 12 December 2006 on services in the internal market as a legal basis for his entitlement to represent before the BGH. The BGH did not follow this argument because the directive 2005/36/EG is lex specialis to Directive 2006/123/EC and allows for supplementary qualification examinations for profession in its field of application. The German (supplementary) qualification examination for qualified patent attorneys from other European Countries is such a supplementary examination and is therefore in perfect conformity with Union law.

Since the Maltese representative did not figure in the list of German Patent attorneys, he was not entitled to represent his client in this case. As he did not pass the examination, he was further not entitled to be registered in this list. The appeal was deemed to be not filed.

The full decision can be read here.

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