Patent Act 1970

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Basic data
Title: Patent Act 1970
Long title: Announcement ... with which the Patent Act 1950 is reissued
Abbreviation: PatG
Type: Federal law
Scope: Republic of Austria
Legal matter: Patent law
Reference: Federal Law Gazette No. 259/1970
Effective date: 19th August 1970
Last change: BGBl. I No. 124/2017
Please note the note on the applicable legal version !

The Patent Act 1970 regulates the protection of technical inventions in Austria . For inventions in all fields of technology, if they are new (§ 3 PatG), do not result in an obvious way from the state of the art for the skilled person and are commercially applicable, patents are granted on request (§ 1 PatG). In addition, ethical and moral requirements must be observed (Section 2 PatG). The essential effect of a patent is that the patent owner can completely exclude others from using the disclosed subject matter or permit them to use the disclosed subject matter to a certain extent under a license - usually for a fee.

Grant procedure

The patentability of an incoming patent application is checked by the Austrian patent office based in Vienna. After a formal check, which relates to the correctness (not the content) of the documents submitted, as well as the check of the fees paid, a search and then a factual examination of the invention is carried out. The novelty as well as the inventive step are essential, which are determined by comparing the state of the art determined in the search with the invention presented.

Objection and nullity, expiration

After the examination by the Patent Office, within a period of 4 months from the date of the announcement of the grant (9 months for European patents) anyone can file an opposition against a granted patent, whereby the opponent must justify why the patent was not granted should have been. After the opposition period has expired, there is also the option of having the patent declared null and void. In the case of an objection as well as an action for annulment, the first instance is before the patent office in a bilateral procedure.

In addition to the expiry of the patent's effect through a declaration of invalidity or revocation in opposition proceedings, failure to pay the required annual fee and the expiry of the longest possible period of 20 years also result in the patent's forfeiture.

Instances

Against certain official decisions, such as the rejection of a patent, an applicant can appeal to the Higher Regional Court (OLG) Vienna for appeal or appeal and the Supreme Court (OGH) for appeal on appeal or appeal .

In infringement proceedings that are only heard before the Vienna Commercial Court, an appeal or appeal to the Higher Regional Court of Vienna and possibly an appeal or an appeal to the OGH can be lodged against judgments and decisions.

Effect of the patent

A granted patent gives the owner a variety of legal options to protect his invention (Section 22 PatG). This includes both the possibility to get the authorities to intervene and to enforce one's demands through civil law.

Interfering with a patent is a criminal offense and can be punished with up to 2 years in prison. Besides offering a granted patent is also the possibility, house searches and the detention of suspect goods by applying to the customs authorities. However, unlike trademark infringement, this practice is not very common.

Much more often, however, civil law measures are used to counter infringements of patent rights. These include, above all, the injunction and the claim for damages. All civil law proceedings, most of which relate to patent disputes, are heard at the Vienna Commercial Court.

Means to defend oneself against a civil action (before the commercial court) for omission or damages are the negative application for a declaration, the declaration of prior use and the destruction of the patent. A negative declaratory petition is used to ensure that there is no interference with the patent, i.e. that no prohibited act has been carried out. If it can be proven that the alleged intervener has already used the invention before the priority date of the application, then further use is to be permitted ("previous user"). If an application for nullity is filed against the patent in a procedure, the current procedure is usually interrupted and the nullity is examined by the Invalidity Department of the Patent Office.

Compared to the granted patent, the right to the invention is described as imperfectly and absolutely protected intellectual property right. The main imperfection is that the right to the invention does not grant an exclusive right to use the invention and that the right to the invention expires if the invention is published without prior patent application.

Historical development

The historical development of patents goes back to inventor privileges, which were introduced in 1794. Further amendments followed up to the patent law of 1898. A new patent law was introduced after the First World War and replaced by German laws after the annexation to Germany. The patent law was reissued in 1950 and 1970 and amended every 5 years on average.

Austrian Empire

  • Court decree No. 902 of February 10, 1810 : The duration of invention privileges was set at 10 years. Privileges were given preference for mechanical engineering, limited for chemistry, and in no case for agriculture. Publication of the invention was only granted to the general public after the expiry of the term. Factual decisions about privileges were made by the political authority.
  • Imperial patent dated December 8, 1820 : The imperial patent contains stricter formal guidelines that were necessary for obtaining a privilege. In addition, the term “specialist” (expert) was mentioned for the first time for reworkability. The revelation content was also required: "... Neither the means nor the method of execution may be concealed ...". With a privilege, there was also a right to exercise and a free right of settlement § 11 in the entire monarchy. The maximum duration of the privileges has been extended to 15 years. References after the priority hour were excluded.
  • Imperial patent from March 31, 1832 :
    • Authorization for foreigners, description in "... German or the business language of the province ...".
    • Appeal "Recurs to the kk Hofkammer"
    • Announcement unless requested by the owner
    • The emperor reserves the right to stay longer.
    • Further expiration if not used
    • Register of privileges in the provinces and in the court authority for Commerz matters
  • Imperial patent from August 15, 1852 :
    • Granted for discovery, invention, or improvement
    • Products of industry, product means and product method
    • Exclusion for food, drink, medicine, economic principles
    • Foreign inventions must be privileged abroad. A foreign inventor needs a domestic representative.
    • The number of years must be determined by the inventor at the beginning
    • Provisions regarding the uniformity (§ 16b) of the invention
    • Establishment of the "Central Archive" for privileges
    • 50% increase in fees
    • Clearer regulation of the interference, fine and omission, confiscation
    • Judgment of invalidity by the Ministry of Commerce
    • Proceedings in the event of interference before the civil courts
  • Law on the protection of inventions of January 11, 1897 (Patent Law) : The first "Patent Law" in Austria was passed on January 11, 1897 under the title Law on the Protection of Inventions (Patent Law) (RGBl. 30/1897) . The main differences to today's patent law are: The duration of the patents was 15 years. The Patent Court was responsible for appeals against decisions of the Invalidity Department of the Patent Office. No reinstatement in the previous state was permitted. In the case of criminal acts committed during the trial, retrial was permissible.
  • Law whereby implementing provisions are made on the occasion of joining the International Union for the Protection of Industrial Property : On January 1, 1909, Austria joined the Paris Convention for the Protection of Industrial Property (PVÜ). For this reason, the patent law was changed with the law whereby implementing provisions are made on the occasion of joining the International Union for the Protection of Industrial Property. The main changes concerned the use of the priority of foreign deposits according to Art. 4 Paris Convention .

First republic


Current version

In the 2013 amendment, the administrative jurisdiction amendment 2012 reorganized the courts. The current version is available in the federal legal information system (see web links). A consolidated version is available on the website of the Austrian Patent Office .

Web links

Individual evidence

  1. ↑ Wolfgang Schuhmacher: On the legal nature of the right to the invention . Wirtschaftsrechtliche Blätter 2012, pp. 56–57