Legislative Implementation of Flexibilities - Austria

Title:	Section 36 of the Patents Law 1970 (BGBl. No. 259/1970), as last amended by Act No. 143/2001 (last amended version of 2010 not available in English)
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Section 36. Compulsory Licenses

(1) If a patented invention cannot be worked without infringing an invention patented earlier (older patent), the holder of the later patent may apply for a non-exclusive license to work the earlier patent if the invention protected by the later patent involves an important technical advance of considerable economic significance. If a license is granted, also the holder of the earlier patent may apply for a non-exclusive license to work the later patent.

(2) Where a patented invention is not worked to a reasonable extent in Austria, the working being possible also by imports, and where the patentee has not taken all steps required for such working, any person may apply for a non-exclusive license to work the patent for the purposes of his business, unless the patentee proves that the invention could not reasonably have been worked, or could not reasonably have been worked to a greater extent, in Austria owing to the difficulties of exploitation.

(3) If a license for a patented invention is required in the public interest, any person may apply for a non-exclusive license to work the invention for the purposes of his business. The respective title of the federal administrative authorities, however, shall not be bound to a business.

(4) If the person entitled to grant a license in accordance with subsections 1 to 3 refuses to do so although the applicant for the license has made efforts to obtain within a reasonable period of time on reasonable, commercial terms and conditions, the Patent Office shall at the request of the applicant for the license decide the matter under the procedure relating to the contesting of patents. If a license is granted, an adequate remuneration shall be fixed, taking into account the economic value of the license. The security which may be required and any other terms governing use shall be fixed having regard to the nature of the invention and the circumstances of the case. The scope and duration of the license in accordance with subsections 1 to 3 shall be authorised predominantly for the supply of the domestic market and shall be limited to the purpose requiring the license. In the case of semiconductor technology the license shall only be granted for public noncommercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive.

(5) A license in accordance with subsection 2 may not be applied for until four years after the filing of the application, or three years after the publication of the grant relating to the patent for which the license is sought, whichever period expires last.

(6) The requirement to obtain the authorization of the person entitled to grant a license can be waived in the case of subsection 3 in the case of national emergency or other circumstances of extreme urgency. In this case a temporary permission for the use of the invention shall be granted by an interim decision.

(7) A license granted in accordance with subsection 4 shall be canceled upon request subject to adequate protection of the legitimate interests of the entitled person, if and when the circumstances having brought about such permission have ceased to exist and are unlikely to crop up again. The Patent Office shall decide on request under the procedure relating to the contesting.