Austria-Selected Compulsory Licensing, Government Use, and Notable Patent Exception Provisions

Patent Law (Federal Law of 1970, as last amended by the Law of May 23, 1984, amending the Patent Law and the Law Introducing Patent Treaties)

I. General Provisions

Patentable Inventions


(1) Patents shall be granted, on request, for inventions that are new (Section 3), are not obvious, having regard to the state of the art, to a person skilled in the art and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions:

1. discoveries, scientific theories and mathematical methods;

2. aesthetic creations;

3. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

4. computer programs.

(3) Subsection (2) shall exclude patentability of the subject matter or activities referred to therein only to the extent to which protection is sought for such subject matter or activities as such.

Exceptions to Patentability

2. Patents shall not be granted:

1. for inventions the publication or exploitation of which would be contrary to public policy or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law;

2. for methods for treatment of humans by surgery or therapy and diagnostic methods practiced on humans; this shall not apply to products, in particular substances or compositions, for use in any of these methods;

3. for plant or animal varieties (animal races) or essentially biological processes for the production of plants or animals.



(1) If the interest of the armed forces or of public welfare or any other compelling federal interest requires an invention in respect of which a patent has been applied for or granted to be used in whole or in part by the federal authorities or to be made accessible for general use, the federal authorities may expropriate either such patent or the right to the use of the invention in whole or in part pursuant to a decision of the competent Landeshauptmann and on payment of fair compensation. The federal authorities shall use the invention, or render it accessible for general use, in accordance with the decision approving expropriation. The Landeshauptmann of the Land in which the applicant or patentee is resident (or established) (Section 21(4)) shall be competent to take such decision. Where several Lander are involved, the authority applying for expropriation shall have. freedom of choice.

(2) In the event of imminent danger, the federal authorities may, with the provisional consent of the competent Landeshauptmann, immediately use the invention or make it accessible for general use on the basis of an application for expropriation, subject to subsequent decision approving expropriation.

(3) The Federal Republic shall pay fair compensation to the patentee and to persons entitled to use the invention, where such right is withdrawn.

(4) With regard to the amount of compensation, every endeavor shall be made to reach agreement with the applicant for a patent or the patentee and the persons entitled to its use, if any. If no agreement is reached, the decision in any action for compensation shall be rendered by the courts, if necessary after hearing expert opinion. The patentee shall have the right to choose one of the experts. In all cases, the amount of compensation shall be determined solely on the basis of the effects of the expropriation of the patent arising in Austria.

(5) The negotiations over the amount of compensation shall have no delaying effect on the exercise of the rights claimed by the federal authorities with regard to

the invention, in favor of itself or the general public.

(6) Where expropriation of a patent is applied for, interested parties whose names are entered in the Patent Register shall be immediately notified by the Patent Office.

Compulsory Licenses


(1) The patentee of an invention of considerable commercial or industrial significance which cannot be worked without the use of an invention patented earlier (the earlier patent) may apply for a license to work the earlier patent. Where such license is granted, the earlier patentee may demand a license to work the later patent, to the extent that the two inventions are in fact connected.

(2) Where a patented invention is not worked sufficiently in Austria and where the patentee has not taken all steps required for such working, any person may apply for a license to work the patent for the purposes of his business, unless the patentee shows that the invention could not reasonably have been worked, or could not reasonably have been worked to a greater extent, in Austria owing to the difficulties of exploitation.

(3) If a license for a patented invention is required in the public interest, any person may apply for such license for the purposes of his business.

(4) A license (subsections (1) to (3)) may not be applied for until four years after the filing of the application, or three years after publication of the grant, relating to the patent for which the license is sought, whichever period expires last. If the patentee refuses to grant a license on reasonable terms, the Patent Office shall, at the request of the applicant for the license, determine the matter under the procedure relating to disputes as to title. If the license is granted, the Office shall fix the royalty, the security which may be required and any other terms governing use, having regard to the nature of the invention and the circumstances of the case.

(5) Subsections (1) to (3) shall not apply to patents of the federal authorities.