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Pharmaceutical Price Index, Supreme Court (Oberster Gerichtshof), 12 June 2012

The act of including a generic product into the official Austrian pharmaceutical product index before expiry of the relevant patent/SPC, is considered an act of “putting into circulation” and therefore a patent infringement. By the same token the act of applying for reimbursement by an application to be included into the “Red Box” pursuant to the Code of Reimbursement of the Association of (Austrian) Social Security Carriers constitutes patent infringement.

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N.A. v. N.A., Supreme Court (Oberster Gerichtshof), 19 September 2011

The right to an unpatented invention does not entitle to its exclusive use; it ceases to exist if the invention is made public without patent protection. The right to an unpatented invention encompasses no more than (i) the right to file a patent application and (ii) the right to claim the patent, in case a third party registers the paent in bad faith.

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A summary of this case will be posted on http://www.KluwerIPCases.com

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Escitalopram, Supreme Court (Oberster Gerichtshof), 16 February 2011

A supplementary protection certificate SPC granted for an enantiomer (escitalopram) cannot be declared void because a prior SPC was granted for the racemate (citalopram) when both the racemate and the enantiomer are protected by individual patents and thus are different products. This must be so because otherwise the enantiomer patent would be invalid for lack of novelty. The patent’s expiration and the SPC’s entry into force do not constitute reason to lift a preliminary injunction (PI), if the infringing product also falls within the scope of the SPC.

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Telescopic jib “Teleskopausleger”, Supreme Patent and Trade Mark Senate (Oberster Patent- und Markensenat), 22 December 2010

The difference between “inventiveness” within the meaning of the Austrian Patent Act and “inventive step” within the meaning of the Austrian Utility Model Act is too small to distinguish between these two criteria. Thus, the inventive step pursuant to § 1(1) Utility Model Act requires the same qualitative criteria as inventiveness pursuant to § 1(1) Patent Act, which is the finding of a non-obvious solution for a problem.

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Memantin, Supreme Court (Oberster Gerichtshof), 31 August 2010

If a supplementary protection certificate (SPC) should have been denied (or granted with limited scope), because the six month application period following the date of first marketing approval has lapsed, it is entirely or partially void. There is a lack of legal interest for a negative declaratory action directed at declaring the non-existence of claims pursuant to §§ 147ss Patent Act (injunction etc.), if the complaint is solely based on the nullity of the SPC or the respective patent. In such case nullity proceedings before the Patent Office are the appropriate action for the purpose sought.

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Nebivolol, Supreme Court Austria (Oberster Gerichtshof), 19 November 2009

The Austrian Supreme Court decided that a patent owner is free to base an infringement action on a limited version of its claims, irrespectively of initiating formal limitation proceedings.

An application for cost reimbursement by the Main Association of the Austrian Social Insurance Institutions, which contained a declaration of the price and the availability of a generic product, constitutes an offering for sale and such application can therefore be prevented by the patent holder until patent expiry.

Foreign decisions only have effect for the respective countries, but are admissible means of evidence to support an invalidity defence in Austrian provisional proceedings.

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