The right to be heard and the obligation to state reasons

If, for the first time in the contested decision a document is cited which in view of the patent office anticipates the claimed subject without giving the applicant the opportunity to comment on it beforehand, the applicant’s right to be heard is infringed. Rejection due to lack of novelty and inventive step requires verifiable justification. … >> read more


To stay or not to stay

Austria has since decades a dual system for judging patent infringement like Germany: infringement itself is the realm of the Commercial Courts (or Penal Courts) while nullity of the underlying patent can only be stated by the Patent Office and its Appellate Courts. Such a nullity decision has then an effect erga omnes which means … >> read more


Red Bull successfully enforces two colour trade marks

The famous Austrian manufacturer of energy drinks Red Bull recently successfully enforced CTM 2534774, a trade mark consisting of blue and silver, whereas these two colours make up half of the mark each. Red Bull sued the owner of the Polish trade mark “Run Cool” who consented to the production of an accordingly labelled energy drink … >> read more


Nullity Department revokes patent ex officio

Ex Officio-Examination of Austrian Nullity Department after Withdrawal of Request for Nullification of a Patent in Appeal Proceedings In Austria, patents may be revoked by a request for revocation to the Nullity Department at the Austrian Patent Office. Decisions in such matter by the Nullity Department may be appealed at the Supreme Patent and Trademark … >> read more


Bifurcated Pitfalls

In a recent decision the Austrian Supreme Court had to decide on the professional liability of an attorney-at-law due to malpractice in a utility model infringement action. The claimant argued that due to miscounselling of the defendant the claimant failed to initiate proceedings for invalidation of the utility model in suit at the Austrian Patent … >> read more



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