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Utility model applications

General Information

After a patent, a utility model is the second option for obtaining protection for a technical invention. Objectively speaking, a utility model is the same as a patent. However, as a utility model is not examined for novelty and inventiveness, it does entail a certain degree of risk: any formally correct application is registered – even if it is not novel and inventive. In such a case, the registration can be cancelled again. The aim is to allow quick registration through a simplified procedure, in order to provide immediate protection for the invention against imitators.

Tip

These rules apply to all Austrian entrepreneurs.

Utility models are territorial – i.e. national – property rights and are therefore only valid in those countries in respect of which they have been granted. A utility model registered in Austria is only valid in Austria.

Compared to a patent, a utility model has the following main differences:

  • shorter term (10 years)
  • lower costs
  • grace period (if the application for the utility model is filed within six months of the inventor publishing the invention)
  • protection for program logic and treatment methods for animals
  • no deferred payment of fees
  • no privileges under commercial/tax law

Enterprises Affected

Natural persons and legal entities seeking to protect their invention as a utility model.

Requirements

In addition to novelty and inventiveness, a claimed invention must have ‘technical character’ or – more precisely – must contain ‘description of its technical use’. This means that a specific technical task must be solved using specific technical means. It must be clear to a specialist how the invention is to be used.

The technical character requirement results from the purpose of patent and utility model protection, namely that of promoting technical progress.

The following cannot be protected:

  • mathematical methods, scientific theories, discoveries, rules for playing games, and business methods
  • plant varieties or species of animal, breeding techniques for plants and animals
  • For variety protection, contact the Austrian Federal Ministry of Agriculture, Regions and Tourism (BMLRT)!
  • diagnostic, surgical and therapeutic treatment methods for humans and animal
    medicinal and therapeutic products and devices and equipment for the above methods are eligible for protection!
  • aesthetic creation
    the external form – the design – of a product can be protected as a design!
  • applications for software and computer-implemented inventions:
  • computer programs per se are not eligible for protection as a patent. Program logics based on computer programs can be protected as a utility model (this does not apply to pure source code, however).

Deadline

Tip

File an application for your invention before disclosing it to the public in order to avoid the risk of prejudicing the novelty of your invention yourself.

In contrast to a patent, however, a utility model is subject to what is known as a grace period. If you have made your invention public, for example through publication in a specialist journal, and the application is filed within six months of that publication taking place, it is then still possible to obtain a utility model registration in Austria.

Competent Authority

Austrian Patent Office (→ ÖPA)German text

Procedure

The utility model application formGerman text can be used to file an application. This makes it easier to meet formal requirements. When filing an application, the description of the invention should be sufficiently detailed to allow a specialist to be able to implement the invention on the basis of this description alone. As the scope of protection is derived from the claims, it is vital that these are drafted professionally.

If the applicant has his place of residence or a branch office in Austria, the utility model may also be filed without representation. If the applicant wishes to have representation and has his place of residence or a branch office in Austria,he may also choose to have non-professional representation, for which written authorisation must be provided. However, if the applicant does not have his place of residence or a branch office in Austria,a professional representative, duly authorised to provide representation in Austria (patent lawyer or law firm or notary's office), must represent him. If his place of residence or a branch office is located in the EEA or Switzerland,an Austrian address for service is sufficient.

How to submit an application:

  • by delivering it to the reception of the Austrian Patent Office
  • by dropping it into the drop box at the Austrian Patent Office
  • by post;
  • by fax: +43 (0)1 534 24 - 535
  • online

Applications cannot be filed by email!

If the invention’s market extends beyond Austria, inventors may wish to obtain additional international protection for their invention.

In many countries, an Austrian utility model application can form the basis for a national utility model application and/or patent application.

An Austrian utility model application can form the basis for an international patent application (PCT) or a European patent application in the same way.

After an application has been filed – The registration procedure

Once the application for a utility model has been filed and if the applicant has filed claims, the Austrian Patent Office examines the legality and carries out a prior art search. It does not, however, examine whether the invention already exists (novelty) or involves an inventive step – if the documents submitted are lawful, the utility model is registered in any case. The applicant receives a prior art search report approximately 6 months after the application has been filed.

The average time for registration is eleven months. A request can, however, be made for accelerated registration for an additional fee. In this case, the application is registered and the utility model specification published immediately if the outcome of the examination of legality is positive. The search report is only created and likewise published afterwards.

Utility model protection begins once registration in the utility model register has been approved by the examiner and the registration published in the Utility Model Bulletin. The utility model specification is sent to the publication server and a utility model certificate is issued.

Term of protection/opposition

The maximum term of a utility model is ten years from the filing date. That term lapses if the annual fees are no longer paid, the property right is abandoned, or the utility model is declared invalid. The latter is because third parties have the option of contesting the registered utility model (by filing an application for a declaration of invalidity) if they believe that the utility model should not have been registered.

Utility model infringement

If your utility model is infringed, you may bring an action for an injunction, removal, publication of a decision, reasonable compensation, damages, surrender of profits, accounting, and claims for information on origin and distribution channels.

Documents Required

The following must be enclosed in duplicate with the utility model application form:

Expenses

The minimum cost of a national utility model application with up to ten claims, including registration and publication, is 330 Euro. Please do not pay any fees at the time of filing the application. You will receive a payment slip quoting your reference number and indicating the purpose of the payment within approximately two weeks of you filing your application. If filing online, the fees that are due are calculated immediately and the application is assigned a reference number. In this case, applicants do not receive a separate payment slip.

In order to maintain your utility model, an annual fee must be paid each year (from the fourth year onwards), which is from 52 Euro to 470 Euro in the 10th and final year. You have the option of making a two-stage, lump-sum payment.

Additional Information

Patent or utility model? Some help in making your decision

Program logics are also eligible for protection as a utility model, with the option of a 6-month grace period.

Related links

Legal Basis

Expert Information

No expert information is available.

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Translated by the European Commission
last update: 27 May 2020
responsible for content:
  • USP Editorial Staff
  • Austrian Patent Office