Dear all,
our intern Julia found an interesting article in regards to the Unitary
Patent (that came into force on 1 June) and the new Austrian law. Please
find the most interesting part below.
https://cms-lawnow.com/en/ealerts/2023/05/no-patent-on-life-unitary-patent-t
o-circumvent-austrian-s-latest-amendment-to-patent-act
Best,
Johanna
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Therefore, it might be possible that the Austrian interpretation of Art
4(1)(b) of the Biotech Directive differs from the EPO's interpretation of
Art 53(b) EPC, although both provisions should be identical in content.
Nullity for European patents already granted in Austria?
The planned patent law amendment 2023 is only applicable for Austrian
national patents. However, since there is no central European nullity
procedure, national nullity proceedings can be initiated in any jurisdiction
where a European patent is valid. Thus, according to Sec 10 PatV-EG,
Austrian parts of European patents can be declared invalid on grounds of Art
138 (1)(a)-(d) EPC. A ground for nullity therefore exists if the subject
matter of the patent would not be patentable under Art 53(b) EPC. The
question how the Austrian Patent Office will deal with the patentability of
biological breeding methods in nullity proceedings after the Patent Law
Amendment 2023 has become effective remains unclear. This question is viable
because the Austrian Patent Office could base the nullity proceedings on the
Austrian interpretation of Art 53(b) EPC or Art 4(1)(b) of the Biotech
Directive and thus declare the Austrian part of the European patent null and
void in the sense of a broader exception of patentability.
There are, however, constitution law objections. For example, the Austrian
Constitutional Court has in the past confirmed that cancellation of a right,
which is retrospectively effective from the beginning of the term of
protection, is to be assessed according to the legal framework applicable at
the time of registration of such right (Austrian Constitutional Court
30.11.1999, B 889/97).
Remedy via unitary patent
The unitary patent, which will be available from 1 June 2023, may provide a
remedy for the potentially inconsistent application of the law. This is
because the unitary patent will be granted by the EPO exclusively according
to the rules and procedures of the EPC. Patentability will therefore be
examined exclusively according to the substantive requirements of Art 53(b)
EPC. According to Art 3 of Regulation (EU) No 1257/2012, the unitary patent
enjoys uniform protection in all participating member states.
The unitary patent is not accessible to national nullity proceedings. This
is because it can only be declared null for all participating member states.
In this aspect, the Unified Patent Court has exclusive jurisdiction. By
obtaining a unitary patent, right holders may thus circumvent the Austrian
Patent Amendment 2023.
Mag. Johanna ECKHARDT
Project Coordination
Tel. +43 680 21 26 343
<mailto:johanna.eckhardt@no-patents-on-seeds.org>
johanna.eckhardt(a)no-patents-on-seeds.org
NO PATENTS ON SEEDS!
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