Legal areas

Patents protect technical inventions and grant their holders the right to exclude third parties from using the invention commercially (exclusion right). In addition to the required technicity, a patent application must also fulfil further criteria in order to be considered patentable. In particular, the subject matter to be protected must be novel and must not be obvious to a person skilled in the art from the state of the art. This means that generally an invention can no longer be protected by a patent once it has been made public.

In terms of time, the scope of protection of a patent is limited to a maximum of 20 years (calculated from the filing date). In terms of territorial scope of protection, national patents are available for protection in individual countries; thereby separate grant proceedings must be conducted before the competent patent office in each case. With the filing of a European patent application, however, it is possible to obtain protection for up to 44 countries in one single grant procedure. With an international patent application it is even possible to obtain patent protection for up to 152 countries, however in this case the patent grant proceedings are only partly centralised.

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The Austrian utility model (like the patent) also protects technical inventions and is commonly also referred to as small patent. This is because the maximum term of a utility model of 10 years is markedly shorter than that of a patent.

However, the utility model also offers significant advantages compared with a patent: Although the criteria that a utility model has to fulfil in order to be legally valid are the same as in the case of a patent, a utility model is merely subjected to a formal examination of conformity with the law, so that markedly shorter grant proceedings can be expected. In addition, a so-called six-month period preclusive of prejudice to novelty applies for utility models. This means that an invention that has already been published and therefore can no longer be protected by a patent can still be protected by a utility model within 6 months of its publication.

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Trademarks are marks that serve to label and distinguish between goods and services from different companies. A trademark registration therefore always comprises a (word, picture, sound, etc.) mark and a list of all the goods and/or services in connection with which the mark is to be protected. There is no limit to the maximum term of a trademark.

To protect a trademark abroad, it can either be registered as a Union trademark, or it can be registered internationally. In addition or alternatively, individual national trademarks can be registered.

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A design has nothing to do with a utility model because it does not protect technical inventions
. Instead, it protects the appearance of a product. Although novelty and uniqueness are criteria that have to be fulfilled by a design in order to be legally valid, these criteria are not examined in the course of the registration procedure. Therefore such proceedings generally take only a few days or weeks.

The maximum term is limited to 25 years. Protection abroad can be obtained with a Community design or international registrations.

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Plant variety protection rights confer a limited exclusive right to produce and distribute propagation material for new plant varieties. This right is conferred to the breeder on application and for a fee, and is valid for a maximum of 25 years (except in the case of trees, vines, hops and potatoes: here the maximum is 30 years).

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Supplementary protection certificates are an extension of the patent protection for authorised pharmaceutical substances or plant protection agents. Prerequisite for the issue of a protection certificate is a basic patent in force. A protection certificate is granted for a product, usually an active substance, and serves to take the long duration of the marketing authorisation procedure for drugs into account
.

The maximum term of a protection certificate is five years, starting at the end of the maximum term of the basic patent. In the case of drugs for children, a one-time extension by six months is possible.

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Semiconductor protection rights protect the three-dimensional structures of microelectronic semiconductor products (topographies). The protection for the topography of semiconductor products only applies to the topography as such.

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Licences can be granted for existing industrial property rights. In return for an appropriate licence fee, the proprietor grants the licensee the right to use the (entire or a partial aspect of the) protected subject-matter within the scope of a licence agreement. However, such licences do not become legally valid vis-à-vis third parties until they have been entered in the respective patent register.

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The Austrian Patents Act regulates the rights to inventions by the employees of a company. Under certain circumstances, such inventions are so-called employee inventions.

If there is a written agreement to this effect and the invention is an employee invention, the employer must be given the opportunity to register the invention as a patent or utility model himself. The employee is entitled to a “reasonable special compensation for surrendering the invention.

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