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Patents protect new technical solutions that involve an inventive step and are industrially applicable. Examination ensures that patents are only granted in respect of inventions that are actually patentable.
A patent provides a territorially restricted exclusive right for a limited period of time (monopoly, maximum 20 years) and entitles the holder to exclude third parties from industrially manufacturing, marketing, displaying or using the subject matter of the invention. However, there are no restrictions on private use of the subject matter of the patent!
These rules apply to all Austrian entrepreneurs.
Patent holders may claim certain privileges under tax and commercial law.
Natural persons and legal entities seeking to protect their invention as a patent.
The invention must be novel and inventive: the invention should not have been disclosed publicly at the time of filing the application and must involve an inventive step. It should therefore not be obvious.
Anything that has been made publicly available prior to the filing date, regardless of where in the world or how it became available, constitutes prior art and is therefore not novel.
Important for inventors: ‘Speech is silver, silence is golden!’ Inventors should first file an application for the invention before disclosing it to the public in order to avoid prejudicing the novelty of the invention. In order to examine the invention for novelty and inventiveness, the Austrian Patent Office compares it to international prior art.
What cannot be patented?
- 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 methods, surgical and therapeutic treatment methods for humans and animals
Medicinal and therapeutic products are eligible for protection, as are devices and equipment for the above methods, surgical and therapeutic treatment methods for animals are eligible for protection as utility models!
- Aesthetic creations
The external form – the design – of a product can be protected as a design!
- Software and computer-implemented inventions: programs cannot be protected as a patent! Program logics based on computer programs can only be protected as a utility model (this does not apply to pure source code, however)
The invention must remain secret until the application is filed.
The Austrian Patent Office (→ ÖPA)German text
Form PA1German 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 person skilled in the art to be able to carry out the invention on the basis of the description alone.
If the applicants have their place of residence or a branch office in Austria, the patent 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. Written authorisation must be provided in such a case, however.
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 the applicant’s place of residence is located in the EEA, an Austrian address for service is sufficient.
You can file your invention in the following ways:
- By delivering it to the reception of the Austrian Patent Office
- By dropping it into the drop box at the Austrian Patent Office
- per Post
- per Telefax: +43 (1) 534 24 535
- Online: Austrian Patent Office (→ ÖPA)German text
Applications cannot be filed by email.
Publishing the application
The application is published, together with a search report, 18 months after the filing date. Should inventors wish to prevent publication of their patent application, they must withdraw their application in good time.
Once the patent application has been published, third parties may express doubts surrounding the patentability of the invention to the Austrian Patent Office. The Austrian Patent Office forwards these objections to the inventors for comment.
After an application has been filed – The patent granting procedure
Once the inventors have filed the application for their invention to be patented, the application and the invention are subjected to a formal and substantive examination, respectively. The result of the examination is notified in writing, in respect of which comments may then be submitted. If defects are not remedied despite an invitation to do so or if the invention is not patentable, the application is refused. Once the patent application has been published, third parties may express doubts surrounding the patentability of the invention to the Austrian Patent Office. These objections are forwarded to the applicants for comment. The patent is granted once the decision to grant takes legal effect. Patent protection begins once the patent is registered and published in the Patent Bulletin. The patent specification is sent to the publication server and a patent certificate is issued.
Term of protection
The maximum term of a patent is 20 years from the filing date. That term lapses if the annual fees are no longer paid, the inventors abandon the property right, or the patent is declared invalid.
Third parties have the option of contesting the granted patent (by filing an opposition or an application for a declaration of invalidity) if they believe that the patent should not have been granted. During opposition proceedings, a decision is made on the patent with the involvement of third parties (one or more parties in addition to the applicant(s) may participate). Any person may file an opposition to a granted patent in writing within 4 months of the date on which the granting of the patent was published in the Patent Bulletin. The opposition must be received by the Patent Office on the last day of this period, at the latest.
The following grounds for opposition may be claimed:
- The subject matter of the patent goes against the Austrian Patents Act, i.e. in particular that the invention was not novel or was obvious to a person skilled in the art at the time the application was filed
- The patent does not disclose the invention sufficiently clearly and completely to enable it to be carried out by a person skilled in the art
- The subject matter of the patent goes beyond the content of the application in the version as originally filed that established the filing date
An application for a declaration of invalidity can be filed over the whole term of the patent.
The following must be enclosed in duplicate with the application:
- Patents – Applications – Cover sheet – PA 3lGerman text
- Patent claims
- Figures of illustrations (if applicable)
The minimum cost of a patent application, including granting and publication, is 550 Euro.
No fees need to be paid at the time of filing the application. Applicants will receive a payment slip quoting their reference number and indicating the purpose of the payment within approximately two weeks of their filing the 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 the patent, an annual fee must be paid from the sixth year onwards, which increases from 104 Euro to 1,775 Euro in the twentieth and final year.
If the invention's market extends beyond Austria, inventors may wish to obtain additional international protection for their invention. An additional patent application can also be filed in any country desired; this is laborious, however, as requirements differ greatly from country to country. There is no such thing as a ‘global patent’.
European and international patents
It is also possible to file in multiple countries (or regions) with one single application:
The European patent: the European Patent Office (→ EPO)German text offers a single patent granting procedure in over 38 European countries.
An international agreement (the Patent Cooperation Treaty, PCT) enables a central payment application procedure to be implemented in up to 148 countries, which is managed by the World Intellectual Property Organization (→ WIPO).
In both cases (European and international patents), the invention can either be filed directly with the European Patent Office or with the World Intellectual Property Organization, or inventors can first file a national patent in Austria and then an additional European or international patent. The priority year (the twelve months following the first filing date) must be adhered to in order for the invention to be processed in time as a first filing in the additional countries, i.e. for the filing date to be carried over. Otherwise, if the invention has been published in the meantime and is thus no longer novel, the inventors will no longer be granted a patent in the countries they wish to subsequently file in.
The decision as to how many and which countries the inventors actually wish to obtain protection in following a European (a choice of over 38 countries) or international patent application (a choice of up to 148 countries) can be made at a later date.
Costs (fees) for a European/international patent application:
- at least 4,300 Euro for a European patent application
- at least 2,800 Euro (including search fees) for an international patent application.
Additional costs are dependent on the number of countries designated, and may therefore quickly rise to thousands of euros if many countries are designated.
- Patentgesetz 1970 (PatG)
- Sections 1 and 2 of the Patentverträge-Einführungsgesetz (PatV-EG)
- Sections 3 to 16 of the Patentamtsgebührengesetz (PAG)
No expert information is available.
- USP Editorial Staff
- Austrian Patent Office