Legislative Implementation of Flexibilities - Austria

Title:	Sections 48 (1) 2) and 3), 87a and 102 (2) 2) and 4) of the Patents Law BGBl. No. 259/1970 as last amended by BGBl. No. 143/2001
Field of IP:	Patents
Type of flexibility:	Disclosure related flexibilities
Summary table:

Provisions of Law

Section 48 - Declaration of Nullity

(1) A patent shall be declared null and void if:

2. the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;

3. the microorganism deposited according to Section 87a(2)1 has not been permanently accessible at the original depositary institution as defined by the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure dated April 28, 1977, Federal Law Gazette No. 104/1984 as amended (Budapest Treaty) or at another depositary institution to which it has been passed on according to that Treaty unless the patentee proves

(a) that he has deposited the microorganism again and that such deposit is deemed, under Art. 4 of that Treaty, to have been made on the day of the original deposit, or

(b) that he was prevented from such a new deposit by an unforeseeable or unavoidable event and that he has made such a deposit within two months after the obstacle ceased to exist.

Section 87a - Disclosure

(1) The patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.

(2) If an invention relates to a microorganism, a microbiological process or a product obtained by such process and if the microorganism is not accessible to the public and cannot be described in the application in such a manner as to enable the invention to be carried out by a person skilled in the art, the invention shall be deemed disclosed according to subsection (1) only if

1. a culture of the microorganism was deposited with a depositary institution as defined by the Budapest Treaty on the date of filing the application at the latest,

2. the application as originally filed contains the authoritative data available to the applicant concerning the features of the microorganism, and

3. if the Patent Office was notified of the depositary institution and the file number of the deposit of the culture prior to taking the publication decision (Sec. 101(1)).

Section 102

(2) Opposition shall be in writing and submitted in duplicate. It may be based only on the following grounds, which must be substantiated by definite facts:

2. that the published application does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;

4. that the microorganism deposited according to Section 87a(2)1. has not been permanently accessible either at the original depositary institution as defined by the Budapest Treaty or at another depositary institution to which it has been passed on according to that Treaty unless the patentee proves

(a) that he has deposited the microorganism again and that such deposit is deemed under Art. 4 of that Treaty to have been made on the day of the original deposit, or

(b) that he was prevented from such a repeated deposit by an unforeseeable or unavoidable event and that he made such a deposit within two months after the obstacle ceased to exist;