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@no-patents-on-seeds.org
NO PATENTS ON SEEDS!
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