The ship’s propeller was invented in Austria, but also the sewing machine, bentwood-furniture, the typewriter and many other great technologies. That the automobile was invented by the Austrian Siegfried Marcus, instead revealed to be incorrect. In any case, Austria has a longstanding tradition in patent litigation.

General:

  • Specialized senates consisting of two (ore more) professional judges and one (or more) technical lay judges (usually patent attorneys) of the related field.
  • Cost efficiency – Austrian patent litigation is relatively cheap.
  • To a large extent, Austrian patent law is harmonised with the EPC.
  • Bifurcated system – similar to Germany
  • Broad cease and desist orders: Defendant typically is ordered to cease and desist from „using [insert infringed claims], in particular[attacked embodiment]“ – thus obvious variations of the attacked embodiment are covered by a PI/ judgement, too.

90% of patent litigations include a request for preliminary injunction (PI):

  • No requirement of urgency for PI-action (see also GEISTWERT’s blog here)
  • No suspension in PI-actions.
  • Plea of abatement of nullity is admissible: The courts have to decide about validity as a preliminary question – and they are able to do so.
  • No balance of interests
  • PI-proceedings are usually inter partes – therefore: PI decisions are fully motivated
  • A PI usually is issued within three month from filing. A last instance PI-decision of the Austrian Supreme Court can be obtained within one year and can then serve as a prejudice for other countries.
  • Effective enforcement – fines up to EUR 100.000,– a day or imprisonment.

Please note: A PI is a sharp weapon. Should it reveal unfounded (eg because the patent was invalid), defendant has a claim for damages without regard to culpability. But due to the market size of Austria, damages usually remain feasible. Austria is therefore well qualified for test cases which lack case law.