[Article / German Patents] Considering “use” as an act of working, in comparison with German patent law (Hiroshi Takahashi, Patent, May 2025)
Updated: 3 hours ago
Article information
Article type: Publication review
Categories: Patents / Europe
Main topics: Working of inventions / Extraterritorial application / Exhaustion and parallel imports
First published on this website: October 1, 2026
Display and classification checked: October 1, 2026 (not a revalidation of the legal analysis)
[Article / German Patents] Considering “use” as an act of working, in comparison with German patent law (Hiroshi Takahashi, Patent, May 2025)
1. Definitions of use in Japan and Germany
Japan's Patent Act uses the same term, use, for both product inventions (Article 2(3)(i)) and method inventions (item (ii)).
German patent law, by contrast, strictly distinguishes its terminology according to the subject matter.
2. Cross-border infringement
German decisions (including the Prepaid Card case) show the following flexible interpretation of use (Anwenden) of method inventions.
<Economic and normative considerations>
Even if some claimed steps occur outside Germany (e.g. on an overseas server), the conduct is assessed as domestic infringement (Anwenden) overall if those steps are attributable to a domestic actor and the invention's technical success (benefit) is enjoyed domestically.
<Practical implications>
Digital technologies are readily described as methods, so method claims can provide protection unconstrained by physical locations.
3. Exhaustion of rights
German law also clearly distinguishes the product and method dimensions in assessing exhaustion.
<Product exhaustion>
Transfer of a patented product (device) exhausts the right to enjoin use (Gebrauchen) of that device itself.
<Non-exhaustion of methods>
Selling a device does not automatically exhaust rights in methods (Anwenden) practised using it.
Exhaustion derives from the product aspect of a patent. Decisions such as the DVD Master case hold that a device's purchaser is not necessarily free to use a patented method through it (i.e. the method patent is not necessarily exhausted).
Original article: https://lnkd.in/grjGcbss
Related articles
Updates and corrections
Substantive corrections and additions are recorded separately from classification, related links and display changes.
October 1, 2026: First publication of the author's original LinkedIn text on this website. Article type, categories, topic tags, sources and consultation navigation added.
2026-10-01 | Display maintenance: added case references stated in the original or language-alternate metadata; not a revalidation of legal analysis.
2026-10-01 | Name notation: replaced verified Japanese-script personal names with Roman-letter forms in this English article and its navigation. Legal analysis and original publication date unchanged.
Comments