Austria will most likely become the member state which will trigger the start of the preparatory phase of the Unitary Patent project. Last Friday the National Council, one of the chambers of its parliament, unanimously approved draft legislation enabling Austria to ratify Protocol for Provisional Application (PPA) of the Unified Patent Court Agreement. Ratification of…
Germany and Slovenia have ratified the Protocol on the Provisional Application (PPA) of the Unified Patent Court Agreement. According to a report of the UPC Preparatory Committee, the German government deposited the instrument of ratification for the PPA on 27 September 2021. It wrote: “This is a decisive step on the way to the establishment…
The Higher Regional Court of Vienna confirmed the three-factor Bicalutamid/Schneidmesser Test, holding that a variant is equivalent to an invention for the purposes of infringement if the following conditions apply cumulatively: 1 The modified embodiment solves the problem using modified, but objectively equivalent means (equivalent effect); 2 The person skilled in the art is able…
The Higher Regional Court of Vienna confirmed that the “second medical use” of an already known substance, as required for patent protection, can be that the substance is used for a specific group of patients with specific effects. Case date: 11 May 2017 Case number: 34R113/16m Court: Higher Regional Court of Vienna A full summary of…
Yesterday, 25 April 2018, AG Wathelet has handed down his opinion in the Teva v Gilead reference (Case C-121/17) suggesting that the question should be answered as follows: “The fact that a substance or combination of substances falls within the scope of protection of the basic patent is a necessary, but not sufficient, requirement for…
According to sec. 1 para 3 no. 5 Austrian Patent Act, programs for computers are not patentable per se. However a computer program may be patentable if it fulfills the technical character requirement. The Supreme Court confirmed that the technical effect is to be determined from the content of the computer program in the context…
An invention is considered to involve an inventive step pursuant to Sec 1 Para 1 of the Austrian Patent Act (which corresponds to Art 56 EPC) if it is obvious to the skilled person based on prior art. This is not already the case when the skilled person could arrive at the invention based on…
Contrary to established case law and practice, the Higher Regional Court of Vienna stayed preliminary injunction proceedings in a patent infringement matter and conducted an oral hearing. The proceedings were stayed until the EPO’s Technical Board of Appeal’s decision, confirming the validity of the patent in suit, was available in writing; the oral hearing was…
The Supreme Court stated that decisions dismissing a request for a stay of proceedings that are within the discretion of the court can generally not be contested according to section 192(2) Austrian Code of Civil Procedure (“ACCP”). This general rule does not apply in cases where the law imposes a mandatory stay of the proceedings….
The newly established 15th Patent Senate of the Appeals Court of Düsseldorf (Presiding Judge Dr. Ulrike Voß) has referred a number of questions concerning the calculation of damages in IP cases to the European Court of Justice. This opens the floor for the ECJ to talk about damages, as far as I know for the…
