– Utility Models Act 1994, as amended up to Federal Law published in the Federal Law Gazette I No. 37/2018.
Membership in International Conventions
– Paris Convention, Stockholm Act.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since January 13, 1968.
– Convention Establishing the World Intellectual Property Organization (WIPO), since August 11, 1973.
– WTO’s TRIPS Agreement, since January 1, 1995.
Applicant: inventor or legal successor (individual, firm, company).
Applicants not residing in the country: must appoint a professional representative. However, for persons having their residence or place of business in the EEA or Switzerland, it suffices to appoint an authorized person resident in Austria as address for service.
Naming of inventor(s): not compulsory.
Nature of the invention: the subject matter of the invention must be novel, based on an inventive step and capable of industrial use.
Categories: a utility model can comprise a product, a machine, a device, or a process, the use of a product, or the program logic being the basis of programs for computers.
Novelty: not disclosed to the public by written or oral description, by use, or in any other way, anywhere, or not comprised in the content of the Austrian patent application, European and PCT patent application with Austria as designated State and Austrian utility model applications, having earlier priority (whole content approach); but, a publication of the invention not prior to six months before the application date remains out of consideration if it directly or indirectly originates from the applicant or his predecessor in title or from an evident abuse to the prejudice of the applicant or his predecessor in title.
Exceptions to protection: discoveries, scientific theories or mathematical methods; aesthetic creations; schemes, rules or methods for performing a mental act, playing a game or doing business, or programs for computers as such; the presentations of information, inventions where the publication or exploitation of the invention would be contrary to the law or public morals; methods for treatment of the human body by surgery or therapy, and for diagnostic methods practiced on the human body (products, substances and compositions for use in any of these methods can, however, be protected); species or varieties of plants and animals including microorganisms as well as essentially biological methods for their breeding.
Priorities: the priority rights must be claimed at the latest within two months of the date of application. One or more priorities, namely Convention priorities of foreign applications and priorities of Austrian patent applications and utility model applications (internal priorities) can be claimed within twelve months of the filing date of the first application.
Filing requirements for an application (to be sent to resident agent):
1. Power of attorney (no legalization required);
2. Specification and abstract;
3. Drawings; size 29.7 x 21 cm with a free margin of 2 cm;
4. If applicable, sequence listing;
5. If priority is claimed: must indicate country, date and file number of basic foreign application(s); priority document(s) is (are) to be filed on official request only;
6. Full name and address of inventor(s), if necessary.
Electronic filing: available.
Examination: only formal; no examination as to novelty, inventive step or susceptibility to industrial use; however, a search report can be requested. Within two months from delivery of the search report, the claims may be revised.
Opposition: not provided for.
Conversion into a patent application: possible, until the end of the two-month term from delivery of the search report.
Branching off: a utility model application may be branched off a (national, regional, or international) patent application or granted patent within specific periods of time and the priority of the basic patent or patent application may be claimed for it. Otherwise the utility model (application) and basic patent (application) are independent of each other.
Granting and Protection
Registration: normally after payment of the publication fee within the two-month term from delivery of the search report, the publication and registration in the Utility Model Register is decided.
Accelerated registration: possible on request at the latest until the day of delivery of the search report together with payment of the publication fee and an additional fee.
Publication: the registered utility model is published in the Austrian Utility Model Gazette, with its bibliographic data only; thereafter a utility model document will be issued.
Beginning of protection: the protection starts from the day of publication of the utility model in the Utility Model Gazette.
Duration: up to ten years from the end of the month of filing the application.
Annuities – latest term for payment: the annuities for the fourth and subsequent years are due on the last day of the respective month of filing. They can be paid three months before the due date and, at the latest, six months after the due date with a fine of 20%.
Assignment: as for "patents".
Licenses: exclusive or ordinary licenses may be granted with a licensing agreement; in relation to third parties licenses become effective only when entered in the Utility Model Register.
Reinstatement: as for “patents“.
Right of prior user: the same regulations as for “patents“.
Working: no proof required.
Nullification: a utility model shall be declared null and void if: (1) the subject matter is not novel; (2) is not based on an inventive step; (3) is not susceptible to industrial use; (4) the invention is the subject matter of a utility model or patent having older priority; (5) specification and drawings do not disclose the invention clearly and completely enough to be performed by a person skilled in the art; or (6) the subject matter of the utility model goes beyond the content of the original version of the application. There is no deadline for such an action. Actions for nullification: see as for “patents“.
Infringement: any person injured in his rights to the utility model, or anticipating such direct or indirect infringement, may make a claim for cessation, removal, publication of judgment, consideration, compensation for damages, restitution of profits and submission of accounts. Preliminary injunctions may be granted. The Commercial Court, Vienna, is competent for actions regarding infringement and preliminary injunctions.