Supreme patent and trademark senate
The Supreme Patent and Trademark Senate ( OPMS or OPM ) was an authority responsible for deciding on appeals against certain decisions of the Austrian Patent Office . It was dissolved with the 2012 amendment to administrative jurisdiction , which came into force on January 1, 2014. Since then, the Higher Regional Court of Vienna and the Supreme Court have decided on appeals against decisions by the Patent Office .
Originally, it only ruled on appeals against final decisions of the patent office's nullity department. According to the 2004 amendment to patent law and fees, he was also able to appeal against the decisions of the appeals department of the Austrian Patent Office. His responsibility also included utility model, design and protection certificate matters. The OPMS was based in Vienna ; the firm's business was conducted by the Austrian Patent Office. The OPMS was a collegial administrative authority with judicial influence , but it was considered a court within the meaning of the European Convention on Human Rights (ECHR) and the law of the European Union . He was therefore also required to submit to the ECJ .
occupation
The OPMS decided in the appointment with its president, in case of prevention, its vice-president in senates consisting of five members, which in patent matters consisted of the chairman, two legally qualified and two technical members (§ 75 Abs. 1 PatG ). The President and Vice-President must be or have belonged to the Supreme Court at least as chairmen of the Senate. The other members also had high demands in terms of their professional experience. The members of the Senate held the title of “Council of the Supreme Patent and Trademark Senate” for the duration of their office. They were appointed for five years, and reappointments were permitted. The occupation of the Senate with members of the Supreme Court was considered constitutionally unobjectionable.
history
The OPMS took the place of the former Patent Court in 1966 and has essentially taken over its tasks. The abolition of the Patent Court was necessary because the Constitutional Court repealed the provisions concerning it as unconstitutional. The main point of criticism was that the Patent Court decided on appeals against decisions by an administrative authority, which was not in line with the separation of administration and justice provided for in Art. 94 B-VG . Therefore, the Patent Court was replaced by the OPMS, which can be qualified as an administrative authority.
On January 1, 2014, the Supreme Patent and Trademark Senate also had to be dissolved due to the abolition of administrative instances in the 2012 amendment to the administrative jurisdiction . Due to the 2014 amendment to patent and trademark law, the Vienna Higher Regional Court and the Supreme Court now decide on appeals against decisions by the Patent Office. The basis for this is Art. 94 (2) B-VG in the version that has been in force since January 1, 2014, which for the first time also allows administrative authorities to appeal to ordinary courts.
literature
- Sabaditsch, Patent Court or Supreme Patent and Trademark Senate ? Austrian papers for industrial property protection (ÖBl.) 1965, 53.
- Sabaditsch, Supreme Patent and Trademark Senate and Constitutional Court, Patentblatt (PBl.) 1974, 124.
- Karl Korinek , On the constitutionality of the Supreme Patent and Trademark Senate , ÖBl. 1966, 77.
- Gamerith, The Supreme Patent and Trademark Senate, a supreme authority in competition with the Supreme Court? ÖBl. 1999, 111.
- Guido Kucsko, Intellectual Property, Manzsche Verlags- und Universitätsbuchhandlung Vienna, 2003, especially p. 879, ISBN 3-214-00423-9 .
Individual evidence
- ↑ Constitutional Court ÖBl. 2000, 90; see. Constitutional Court Patentblatt 2006, 89, 94
- ↑ Helmut Gamerith , Der Oberste Patent- und Brandensenat, a supreme instance in competition with the OGH ?, ÖBl 1999, 111
- ^ Ruling by the Constitutional Court of October 15, 1964 in proceedings G18 / 64
- ^ Draft opinion for a 2014 amendment to patent and trademark law in the federal legal information system
- ↑ Federal Law Gazette I No. 126/2013
