How quickly do provisional patents have to be filed?

Patent application

General information

Patents protect new technical solutions that are based on an inventive achievement and are commercially applicable. The examination ensures that patents are only granted for inventions that are actually worth patenting.

A patent represents a territorial and time-limited right of exclusion (monopoly, maximum 20 years) and entitles the holder to exclude third parties from operationally manufacturing, marketing, selling or using the subject matter of the invention. The private use of the patent subject is, however, permitted to everyone!

Patent holders can take advantage of certain tax and commercial benefits.

Affected

Natural and legal persons who want to have their invention protected by a patent.

requirements

The invention must be new and inventive: The invention must not be published at the time of filing and must involve an inventive step. So it must not arise in an obvious way.

Everything that was made available to the public in whatever way, anywhere in the world before the filing date, is state of the art and therefore no longer new.

Important for inventors: "Talking is silver - silence is gold!" Inventors should first register the invention and only then go public - this will not jeopardize the novelty of the invention. In order to assess whether the invention is new and inventive, the Austrian Patent Office compares it with the worldwide state of the art.

What cannot be patented?

  • Mathematical methods, scientific theories, discoveries, rules of the game, and business methods
  • Plant varieties or animal species, breeding methods for plants and animals

tip

In the case of plant variety protection, contact the BMLFUW!

  • Diagnostic methods, surgical and therapeutic treatment methods for humans and animals
  • tip

    Medicines and remedies can be protected, as well as devices and devices for these procedures, surgical and therapeutic treatment procedures on animals can be protected as utility models!

  • Aesthetic creations
  • tip

    The outer shape - the design - of a product can be protected as a sample / design!

  • Software and computer-implemented inventions: programs cannot be protected by a patent! Program logics based on programs for data processing systems can only be protected by a utility model (but this does not apply to the pure source code)
  • Deadlines

    The invention must remain secret until the application is submitted.

    Competent authority

    The Austrian patent office

    Procedure

    The PA1 form is used for registration. This makes it easier to meet the formal requirements. The invention should be described in sufficient detail at the time of registration that a person skilled in the art could easily implement the invention on the basis of the description.

    If applicants have their place of residence or their place of business in Austria, the patent can also be applied for without representation. If representation is desired, the applicant can also choose a non-professional representation if they are domiciled or have a branch in Austria. In this case, however, a written power of attorney must be presented.

    However, if the applicant has neither residence nor branch office in Austria, a professional party representative (patent attorney or law firm or notary's office) authorized to represent in Austria must represent them. If the applicant is domiciled in the EEA, an Austrian delivery authorization is sufficient.

    This is how you can register your invention:

    • Submit in the Austrian Patent Office, at the receiving office
    • Throwing into the drop box of the Austrian Patent Office
    • by post
    • by fax: +43 (1) 534 24 535
    • Online: Austrian Patent Office

    Registration by email is not permitted.

    Publication of the application

    The application is published together with a search report 18 months after the filing date. If creators want to prevent their patent application from being published, they must withdraw their application in good time.

    After the patent application has been published, third parties can report concerns about the patentability of the invention to the Austrian Patent Office. The Austrian Patent Office transmits these objections to creators so that they can comment on them.

    After filing - the patent granting process

    After inventors have applied for a patent for their invention, the application (formally) and the invention (factually) are examined. The result of the examination is given in writing, and comments can be made on this. If defects are not remedied despite being requested to do so, or if the invention is not patentable, the application will be rejected. After the patent application has been published, third parties can report concerns about the patentability of the invention to the Austrian Patent Office. Applicants receive these objections so that they can comment on them. The patent will be granted after the decision to grant has become final. Patent protection begins with the registration of the patent and its publication in the patent gazette. The patent specification is made available on the publication server and a patent certificate is issued.

    Term of protection

    The maximum duration of a patent is a maximum of 20 years from the filing date. It expires beforehand if the annual fees are no longer paid, inventors waive the property right or the patent is declared null and void.

    Objection

    Third parties can challenge the granted patent (by opposition or application for a declaration of invalidity) if they are of the opinion that the patent should not have been granted. In opposition proceedings, a decision is made on the patent with the involvement of third parties (one or more parties can be involved in addition to the applicant). Within four months from the date of the announcement of the grant of the patent in the patent gazette, any person can object in writing to the grant of the patent. The objection must be received by the patent office no later than the last day of this period.

    The following grounds for objection can be invoked:

    • The subject matter of the patent does not correspond to the patent law, i.e. in particular that the invention was not new at the time of filing or was obvious to a person skilled in the art
    • The patent does not clearly and completely disclose the invention for one skilled in the art to carry out
    • The subject matter of the patent goes beyond the content of the application in the version originally filed and justifying the filing date

    An application for a declaration of invalidity can be made during the entire term of the patent.

    Required documents

    The application must be attached in duplicate:

    costs

    The costs for a patent application including grant and publication are at least 550 euros.

    No fees have to be paid when registering. Within about two weeks of registering, applicants will receive a payment slip with their file number and the purpose of payment.

    When filing online, the fees due are calculated directly and a file number is assigned to the application. In this case, applicants will not receive a separate payment slip.

    In order to maintain the patent, an annual fee must be paid from the sixth year onwards, which increases from 104 euros to 1,775 euros in the twentieth and thus last year.

    Additional Information

    If the invention does not only have a market in Austria, then inventors will also want to have their invention protected internationally. For this purpose, a further patent application can be carried out in any desired country, but this is cumbersome because the regulations are very different from country to country. There is no such thing as a "world patent".

    European and international patent

    But there are ways to reach several countries (or regions) with a single registration:

    The European patent: The European Patent Office (EPA) offers a uniform patent granting procedure in over 38 European countries.

    An international treaty (Patent Cooperation Treaty, PCT) makes it possible to carry out a central patent application procedure for up to 148 countries, which is administered by the World Intellectual Property Organization (WIPO).

    In both cases (European or international patent), the invention can either be registered directly with the European Patent Office or with the World Intellectual Property Organization, or inventors first apply for a national patent in Austria and then for a European or international patent. The priority year (12 months after the first filing date) must be adhered to so that the invention is treated in the same way as the first filing in the other countries, i.e. the filing date is included. Otherwise, inventors will no longer receive a patent in the countries they want later if the invention has been published in the meantime and is therefore no longer new.

    How many and which countries inventors really want to have protection after a European (option for over 38 states) or international patent application (option for up to 148 states), must be decided later.

    Costs (fees) for a European / international patent application:

    • for a European patent application at least 4,300 euros
    • for an international patent application at least 2,800 euros (including search fee).

    The additional costs depend on the number of countries named and can therefore quickly rise to several thousand euros in many countries.

    Legal bases

    To the form

    Last update: January 1st, 2018

    Responsible for the content: Austrian Patent Office