Austria
- Austrian Patent Act
Prior to
the ratification of the European Patent Convention (EPC), the Austrian
Patent Act provided for a ban on patentability for inventions of
food products for human consumption, pharmaceutical products and
of products chemically manufactured. Patents granted in violation
of that ban should be revoked upon application. This reservation
was effective for 10 years until October 7, 1987. Consequently
the current Patent Act no longer contains this ban on protecting
these substances.
Whereas
the Austrian ban on protection of substances explicitly covers patents
so long as the reservation is in effect, it is less clear from the
statutory point of view whether it also applies to patents that
were granted after October 7, 1987, but for which the application
was filed before that date. However, the Supreme Court has
rejected this interpretation in the case Amlodipin vs Omeprazol.
Both Amlodipin and Omeprazol concerned infringement actions for
pharmaceutical patents. The wording of the Patent Act's reservation
clause does not expressly require the process of manufacture to
be distinct.
In Amlodipin,
the court indicated that one could not rely on the approach not
to understand the Austrian ban on protection of substances after
the end of the reservation period. In the same year the court
was even more explicit in Omeprazol and held that national patents
are subject to the ban on protection of substances not only if they
were granted before October 7, 1987 but also if their application
was filed before that date. In the court's view any other
interpretation would give rise to a discrimination of European patents
and would undermine the purpose of Austria's reservation.
In order
to prevent a circumvention of the ban on protection of substances,
the court considered a process to be distinct only if the process
is identified by the starting substances, and the way to process
them, and the end product. The court also emphazied that not
only the method of mixture, as in Amlodipin, but any process
of manufacture of a pharmaceutical product has to be distinct in
order to be exempted from the ban on the protection of substances.
While in Omeprazol the Supreme Court ruled on the patent's validity
only as a preliminary question and the main infringement, the Supreme
Patent and Trade Mark Panel came to a conclusion that the manufacture
of a pharmaceutical for a specific medical indication is not completed
until all measures have been taken which are necessary for a pharmaceutical
for a specific medical indication to exist.
The Panel's
ruling restored the general patentability of claims of Swiss-type
form under Austrian patent law. However, the Panel's decision
has been appealed to the Constitutional Court with the argument
that the decision is based on an impossible interpretation of the
Patent Act.
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