Legislative Implementation of Flexibilities - Austria
| Title: | Sections 1-3 of the Utility Model Act No. 211/1994 as amended by BGB1. No. 175 of 1998 and 143 of 2001 |
| Field of IP: | Patents |
| Type of flexibility: | Utility models |
| Summary table: |  |
Provisions of Law
Section 1 Subject Matter
(1) Upon application inventions which are new (Section 3), which are based on an inventive step and which are susceptible to industrial application shall be protected as utility models.
(2) The programm logic on which programs for data processing systems are based shall also be regarded as an invention as defined by subsection (1).
(3) The following in particular shall not be regarded as inventions as defined by subsection (1):
1. discoveries, scientific theories, and mathematical methods;
2. aesthetic creations;
3. schemes, rules and methods for performing mental acts, for playing games or for doing business, and programs for data processing systems;
4. presentations of information.
(4) The provisions of subsection (3) shall exclude the protection as utility models of the subject matter or activities referred to in that subsection only to the extent to which protection is demanded for them as such.
Section 2 Exceptions
The following shall not be protected as utility models:
1. inventions the publication or exploitation of which would be contrary to "ordre public" or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by regulations;
2. methods for treatment of humans by surgery or therapy and diagnostic methods practiced on humans; this shall not apply to products, in particular substances or compositions, for use in any of these methods;
3. plant or animal varieties (animal races) including microorganisms or essentially biological processes for the production of plants or animals.
Section 3 Novelty
(1) An invention shall be considered to be novel if it does not form part of the state of art. The state of art shall be held to comprise everything made available to the public by means of a written or oral description, by use or in any other way, before the priority date of the application.
(2) As state of the art shall also be considered the contents of earlier priority date.
1. utility model applications on the basis of this Federal Law,
2. patent applications on the basis of the 1970 Patents Act, Federal Law Gazette no. 259,
3. international applications in the meaning of section 1, (6) of the Act Introducing Patent Treaties, Federal Law Gazette no. 52/1979, provided the conditions as set out in section 16, subsection 2 of the Act Introducing Patent Treaties are fulfilled, and
4. European patent applications in the meaning of section 1, (4) of the Act Introducing Patent Treaties, provided the conditions of article 79, subsection 2 of the European Patent Convention, Federal Law Gazette no. 350/1979, or, where the European patent application was filed on the basis of an international application, the conditions of article 158, subsection 2 of the European Patent Convention are fulfilled,
in the version as originally filed whose contents were not officially published before the priority date of the later applications or thereafter. When assessing the question whether the invention is not obvious to the person skilled in the art from the prior art, such applications of an earlier priority date are not taken into consideration.
(3) The protectability of substances or compositions that are comprised in the state of art shall not be excluded by subsection (1) if intended for use in a method referred to in Section 2(2) or in any such method for animals and unless their use in any of these methods is part of the state of art.
(4) For the application of subsection (1) a disclosure of the invention shall not be taken into consideration if it occurred not earlier than six months prior to the filing date of the application and if it was directly or indirectly due to:
1. the applicant or his legal predecessor, or
2. an evident abuse to the prejudice of the applicant or his legal predecessor.