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Your rights

As the inventor or holder of a patent or utility model, you have both rights and obligations.

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Challenges to patents and utility models

Everyone is entitled to challenge a granted patent or a registered utility model within the scope of the law and with sufficient justification (substantiation). An opposition (only for patents!) or a request for a declaration of nullity may be filed if one of the following conditions is met:

  • lack of novelty or inventiveness,
  • the patent's subject matter extends beyond the content of the application as filed,
  • the invention is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.

The patent opposition or request for a declaration of nullity must be filed with the Austrian Patent Office. Oppositions are handled by the relevant technical department, while requests for a declaration of nullity are handled by the nullity department.

In the case of oppositions, the decision of the technical department may be challenged by having recourse to the Vienna Higher Regional Court (Oberlandesgericht Wien).

The final decisions of the nullity department may be challenged by appealing to the Vienna Higher Regional Court (Oberlandesgericht Wien).

Infringements of patents and utility models

If your patent or utility model is infringed, you can file a lawsuit at the Commercial Court of Vienna (Handelsgericht Wien) for injunctive relief, destruction of the infringing products and implements and resources required for production of such products, publication of the judgement, damages, surrender of profits, compensation, rendering of accounts, and the right to information about the origin and distribution networks of the infringing products.

Application for a declaratory decision

If you are producing a product or using a method and would like to know whether your product/method infringes a given valid patent or utility model, you can file an application for a declaratory decision with the Patent Office.

And, vice-versa, if you are the holder of a valid patent or utility model, you may file an application for a declaratory decision with the Patent Office to clarify whether your patent or utility model is infringed by a product that is produced by third parties or a method that is used by third parties.

Declaration of dependence

If you are the holder of a valid patent or utility model with an earlier priority date, you may request that the Patent Office reach the decision that the commercial use of a later invention is dependent upon the full or partial use of your earlier invention. The Patent Office must reach a decision on such an application in accordance with the procedure for challenges.

Declaration of lack of title

A holder's patent or utility model may be revoked if it is proven that:

  • the holder was not entitled to be granted the patent, or
  • the substantial content of the application was taken from the descriptions, drawings, models, implements or facilities of a third party or a method used by a third party without such party’s permission.

Entitlement to be named as the inventor

The inventor is entitled to be named as the inventor. He/she may file a relevant request with the Patent Office if the applicant or patent holder refuses to name him/her.

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