Title: | Sections 57a, 99 and 100 of the Patents Law BGBl. No. 259/1970 as last amended by BGBl. No. 143/2001 |
Field of IP: | Patents |
Type of flexibility: | Substantive examination |
Summary table: |
Section 57a. Services Rendered and Information Given by the Patent Office
The Patent Office shall, upon request, furnish expert opinions in writing
1. on the state of art concerning a concrete technical problem (searches) and
2. on the fact if there is an invention patentable according to the provisions of Sections 1 to 3 as compared with the state of art cited by the applicant or to be searched by the Patent Office.
Section 99. Preliminary Examination
(1) A preliminary examination of the application shall be made by a member of the Technical Division. The examination shall not relate to the financial return to be expected from the invention.
(2) If the application does not fulfill the requirements laid down, the applicant shall be requested to remedy the defects within a prescribed period.
(3) Where the preliminary examination shows, if necessary after experts have been heard, that the invention is manifestly not patentable under Sections 1 to 3, applicant shall be informed accordingly, if necessary after having been questioned by the examiner. He shall be informed of the reasons and requested to state his case within a prescribed period.
(4) The period (subsections (2) and (3)) may be extended on request. There shall be no remedy against rejection of a petition for extension of the period, but a statement of the case in reply to a preliminary decision may be submitted out of time within two weeks after the decision rejecting the petition has been served.
(5) If, within the time limit laid down, neither a statement of the case in reply to the preliminary decision (subsections 2 and 3) nor a petition for an extension of the time limit is submitted, the application shall be deemed withdrawn. This legal consequence shall not take effect if, within four months of the expiry of the period (subsections 2 and 3), the statement of the case in reply to the preliminary decision is postfiled, if a fee equal to the application fee is paid (Section 166(1)) and if the payment of that fee is duly proved (Sec. 169). If timely payment has not been duly proved, a time limit of one month, which may not be extended, shall be prescribed for the applicant.
(6) The President of the Patent Office may issue guidelines on the principles governing the preliminary examination and on the procedure for such examination to be observed by the members of the Technical Division. In particular, he may determine the periods to be laid down by the Office. In this connection, he shall take account of the need for as rational and careful a preliminary examination as possible and for uniformity in the treatment of applications.
Section 100. Rejection of an Application
(1) Where the original or amended application does not fulfill the requirements laid down or where the invention is ex facie not patentable within the meaning of Sections 1 to 3 (Section 99), the application shall be rejected. Where the conditions referred to apply only in part, only the corresponding part of the application shall be rejected.
(2) Where the application is to be rejected for a reason which was not already communicated to the applicant during the preliminary examination, he shall be given an opportunity to state his case in regard to that reason within a prescribed period.