Nießbrauch am Patent

Since the ratification of the German Civil Code (BGB), the legal institution usufruct has never been seriously considered for the transfer of rights of use of intellectual property. Instead, in practice, ‘exclusive’ and ‘non-exclusive’ licences are granted. This practice developed because prevailing opinion held that usufruct legal provisions are not subject to contrary agreement. As a consequence, the usufruct of a patent is considered to be non-transferable, and because of this lack of flexibility, it is regarded as unsuitable in practice. The author questions the present interpretations regarding the derogation of the usufruct legal provisions and develops a methodology to examine the derogation. He comes to the conclusion that all usufruct legal provisions relevant for a patent are subject to contrary agreement.