INFORMATION FROM THE CONTRACTING / EXTENSION STATES
AT Austria
New utility model law - Amendment of patent law
The Federal Law governing the Protection of Utility Models (Gebrauchsmustergesetz - GMG)1 came into force in Austria on 1 April 1994. Utility models provide a means of protection for technical developments which do not have the high level of inventive content necessary for a patent and they can be obtained by means of a quick and simple application procedure.
1. Utility models can be granted for inventions which are susceptible of industrial application, which are new and which involve an inventive act (erfinderischer Schritt). The requirements for level of invention are thus less stringent than for patentable inventions. One special feature of the Austrian utility model law is that it offers protection for the program logic on which programs for data-processing systems are based. This represents a considerable improvement in software protection, for which copyright was previously the only option.
Utility models can be obtained for processes and chemical substances. Plant and animal varieties (breeds) and micro-organisms are excluded, as are essentially biological processes for their production. The same applies to methods for the treatment of the human body by surgery or therapy and diagnostic methods practised on the human body.
2. Utility model applications must fulfil basically the same requirements as patent applications. The priority of a patent application may be claimed for a utility model application and vice versa, the priority period being 12 months. Unlike patent applications, utility model applications enjoy a period of grace in which disclosure of the invention by the applicant or his legal predecessor is not prejudicial to novelty providing that it did not take place more than six months prior to the date of filing.
3. The Austrian Patent Office establishes whether a utility model application meets the legal requirements. The application procedure does not however include an examination for novelty, inventive act or industrial applicability, nor does it establish whether the applicant is entitled to utility model protection. If there are no objections to publication and registration of the utility model, the Austrian Patent Office compiles a search report within six months of the date of filing. The applicant may amend the claims on receipt of the search report. Once proof of payment of the required fees has been received, the utility model is registered and published.
Applicants may request immediate publication and registration of their utility model (accelerated proceedings) when filing their application. Provided that no objections arise from the examination for legality and that proof of payment is received, the utility model is published and registered within a short space of time (one to three months).
The search report is an integral part of the utility model specification . If in the event of accelerated proceedings it has not been compiled by the date of publication and registration of the utility model, it is published separately.
4. During the application procedure, a utility model application may be converted into a patent application and vice versa. Conversion may be effected up to the date on which the decision to publish is taken, and this also applies to patent applications which were filed before the GMG came into force and are still pending. A European patent application which is deemed under Article 77(5) EPC to be withdrawn may now also be converted into an Austrian utility model application.
5. The term of protection commences with the publication and registration of the utility model, which take place on the same date. The maximum term of protection for a utility model is ten years from the end of the month in which the application is filed. Renewal fees are payable from the second year onwards.
The effect of a utility model is the same as that of an Austrian patent, i.e. the owner can institute civil or criminal proceedings against infringers.
The Austrian Patent Office may revoke a utility model in response to a well-founded request if the substantive conditions for protection, in particular novelty and inventive act, have not been met.
6. As there is no ban on simultaneous protection in Austria, it is possible to both claim a patent and register a utility model for the same invention.
7. An amendment to the Austrian Patent Law of 1970 and the Law on Fees of 19572 came into force at the same time as the GMG. The representation regulations governing services and information provided by the Austrian Patent Office have been liberalised and the provisions regarding translations of national patent applications filed in English or French have been simplified.
8. Further details on the protection of utility models in Austria have been published in the Austrian Patent Gazette 1994, 41 ff. The Utility Model Law and the Law amending the 1970 Patents Act and the 1957 Law on Fees are enclosed with Austrian Patent Gazette No. 4/1994.