If the holder of a patent or utility model is in fact not entitled to the invention - for example, he has stolen the invention from the true inventor, or he is not the inventor - there is the possibility to deprive the proprietor of his right to the patent in an official procedure. This claim, however, belongs only to the actual inventor or to the person, whom the invention has been stolen.
Instead of depriving the registered owner of the patent or utility model, the transfer of the right to the patent or utility model to the rightful owner may also be claimed. Such official procedures are intended not only for Austrian patents and utility models, but also for the Austrian parts of European patents as well as for Austrian registered designs and Community designs, but not for trademarks.
The vindication procedure is conducted at the Nullity Department of the Austrian Patent Office. The parties are given the opportunity to present their position in several writs. The procedure ends with a decision which is usually issued in writing a few weeks after a final oral hearing. The winning party is entitled to compensation of its costs.
The decision of the Nullity Division may be challenged in second instance by an appeal to the Higher Regional Court of Vienna. The appeal procedure is only in writing and the parties have only the possibility to file a single writ.
Finally, the decision of the Higher Regional Court of Vienna can be appealed by a revision to the Supreme Court (OGH).
We routinely litigate at the Nullity Division of the Austrian Patent Office, and are glad to advise you about your possibilities!
