1E9Ct5D

Where two inventions have been simultaneously invented, only the first applicant’s inventionis patented. If it can be shown, however, that at the time of registration the individual of thesimultaneously achieved invention had bona fide use of his invention in Austria, or had madeserious preparations for the commercial exploitation of the product, he will qualify as a prioruser.The effects of the first applicant’s patent do not affect the prior user’s rights. The latter isempowered to continue using the invention in the method and to the same extent adoptedprior to the priority date. Usage of the product is firmly restricted to its prior operation. Theprior user’s opportunity to obtain a patent grant re-occurs when the first applicant’sregistration fails to patent the product.An employee invention occurs when an invention is attributed to an employee and is inventedwithin the working sphere. It must either be undertaken as an obligatory service at thesuggestion of the enterprise, or is one that has been made substantially easier by the supportor the experience of the enterprise.In principle, the employee may claim for a patent grant under article 6 clause 1 of the PatentAct. This entitlement is not subject to a contrary agreement by the parties. The employermay claim the inventions of employees, however, where the contract of service is of a publiclaw nature or where the parties of a private contract reach an agreement to this effect.The registration of an invention as a patent requires a written application to the Patent Officein Vienna. The applicant gains a right of priority as a result of successful application. ThePatent Office undertakes a preliminary investigation for formal and material defects.If no defects arise, the patent is published in the Austrian Patent Gazette and is left open forfour months from this date to general examination. Third parties are given the opportunity tomake claims against the granting of the patent. If no such third party claim is made, thepatent will be deemed as granted with the expiry for the four-month time limit. At this point,the patent is entered into the patent register and published for the attention of customers inthe Patent Gazette. A certificate is awarded to the holder and the printed patent specificationis published.The maximum term given to patents is 20 years from the date of registration. The owner of apatent is entitled to licence the invention to third parties at his own free will. Austrian patentlaw also provides for compulsory licences.An administrative authority may demand such licences, where the proprietor of anindependent invention of immense commercial significance requires the use of an olderpatent to fully exploit the new invention. The same is true for the owner of the older patent,who is entitled to demand a licence for the independent patent. A compulsory licence mayalso be appropriate where the patentee does not appropriately exploit the patented productand where exploitation is within the public interest.In the area of biological material, a compulsory license can be obtained if a breeder cannotachieve the development of a further plant variety without infringing a prior patent. Thebreeder is able to obtain a non-exclusive license for the patent provided the plant varietyconstitutes a significant technical progress of considerable economic value compared to thepatent and provided the license is necessary to exploit the plant variety.A patentee’s exclusive right to prohibit third parties from the use of the patented product iscodified in article 22 of the Patent Act and is, following the principle of territoriality, restrictedto Austria.Article 46 holds that a patent is extinguished by:- Expiration of the 20 year term; or- Failure to pay the annual fee, by surrendering the patent or, in accordance with article 33clause 1, as a result of the intestate death of a patent holder.According to article 47, a patent may be totally or partially reversed to ensure that theinvention is utilised to an appropriate extent within the country.- 38 -