Overview of Industrial Property Rights
Copyright laws are a set of exclusive rights that protect the creator of an original work. It is an important exception under intangible property rights: No application, registration or assessment, etc. is required.
In contrast to patents, the underlying idea is not protected but rather the concrete embodiment. Another important difference is that independent second creations are also protected: these do not breach copyright law. This, however, can be very difficult to prove in practice.
There are numerous exceptions for copyright protected work that allow certain activities for certain purposes without the creators permission. An example of this is private copy. It should be noted that in the past few years, conditions have been strongly restricted, becoming much more complicated!
Copyright laws can be in effect up to 70 years after the creator’s death. Be aware that some works can have more than one creator/authorized person and it may not necessarily be blatantly clear (such as a translator or performing musician).
Industrial Property Rights
Subsequent for the scientific research of relevant industrial property rights:
- Protection Certificate
- Utility Model
- Semiconductor Protection
- Marks and Brands
- Industrial Design
- Plant Variety Right Protection
Patents are exclusive rights granted in return for complete disclosure about an invention. The property right holder should have secured utilization without hindering the progress of science through secrecy. See Patents for more information.
This includes special patents on pharmaceutical products and plant protecting agents (with permission for circulation!) and an extension (maximum of five years). The scope, however, is limited to the products alone. The Patent Office will only conduct a formal inspection. An annual (increased) fee applies for each additional year.
The introduction of protection certificates include the often long approval and licensing procedures in the pharmaceutical industry and the associated disadvantage as opposed to other patents (which can often financially be used quickly.)
See the Austrian Patent Office website for more information.
As with a patent, technical innovation is also protected, however inventive merit does not have to have the same level as a patent. As opposed to a patent, a utility patent is not subject to a review with regards to innovation, innovative activity, or commercial application. The assessment is left to applicant who, in the event of any objections, will have to demonstrate procedure. To increase legal protection, the Patent Office will review the technological standing per application (non-binding!) which will be published along with the application.
As with a patent, a utility patent is only valid within Austria. As opposed to patents which can be registered practically anywhere in the world, there are some countries that do not recognize utility patents (or equivalent property laws).
The maximum length of a utility patent is 10 years (patent: 20 years). As opposed to a patent, the procedure is noticeably shorter.
Special regulations pertaining to new inventions: the invention can be published up to 6 months before registration by the inventor or his/her legal predecessor. As opposed to a patent, a utility patent can be registered "retroactively" (as a ‘temporary solution’, so to say).
A special Austrian specification is that a utility patent’s programming logic as such is patentable. This means there is a "small patent" on algorithms (which are, however, subject to fulfilling the technicality requirements). Example: also in Austria, business methods/procedures cannot be legally patented or protected.
See the Austrian Patent Office website for more information.
This particular property right law protects the three-dimensional structures of microelectronic semiconductors (= chip topography), including the manufactured semiconductors (=chips).
With regards to content, this property right law is more equivalent to copyright law rather than patent law as the topography is not commonplace and the results must stem from the creator’s own intellectual activity. Only the concrete design is protected and does not include the concepts, procedures, systems, technologies or saved information. For advanced protection in regards to confidential information, sections of the material can be marked “confidential” thereby allowing only restricted access.
The semiconductor protection covers a maximum period of 10 years, however if registered retroactively, beginning with the first commercial application (different than with a patent!) but if registered prior, then with this one. The Patent Office will only conduct a formal review. See Austrian Patent Office homepage for more information.
Marks and Brands
A mark – or trademark – identifies one company’s goods or services from those of other companies, providing consumers with a means to differentiate products by other manufacturers or sellers. For companies, branding is a commercial business practice that serves to differentiate goods and services offered as opposed to goods and services offered by other companies.
Trademark Protection is available for a 10 year period and can be extended another 10 years as often as desired.
A brand, mark or trademark can take many different forms: Word Marks: words only; Figurative Marks: graphic images, no words; Figureative Marks: whether or not including words; Three-Dimensional Marks: special form; Etc.
In order to protect a mark, the following requirements must be met:
- Distinctive Character: a significant difference to other marks is required and also excludes universal phrases (such as: "Our Bread is the Best").
- Non-Depictive: a bakery cannot patent the word “Bakery” exclusively as its name.
- Non-Deceiving: the mark may not lead to deceiving consumers (such as a mark containing the word “organic” but in reality the product is not organic).
Classification is special feature of brands: brands and trademarks are only available to protect certain groups of goods and/or services (freely selectable at the time of registration). The same brand can be registered and used by two different companies as long as it does not overlap classification (or is not already a "famous" or “iconic” brand).
At the time of registration, the Patent Office will review the formal requirements of the brand (particularly the exact indication of class), additional requirements (distinctiveness, descriptiveness, etc.) and conduct a search for similar marks. The search for similar marks, however, is purely informative: a meticulous assessment is the applicant’s responsibility! – you may apply to submit a brand that could be mistaken for another, or even identical brands, at any time but with the risk that the other brand holder will be given an opportunity to submit an application of invalidation.
A mark or brand can be registered as national, European-wide ("community trade mark" – valid in all EU member countries) or international (currently freely selectable from 80 countries).
In regards to a design (design protection), its appearance (= visually perceptible characteristics) is protected by industrial production. This does not, however, include the underlying idea, any inventions or production methods. Provided there are other special conditions, this can also be protected by other trademark laws. Thus, for example, computer programs (=code) cannot be protected but the screen output (screens, icons, ...) can.
The design patent provided copyright protection for up to 25 years (five years, four extensions) before the outer appearance can be copied.
In order to protect a design, its appearance must meet the following criteria:
- Novelty: Prior to submitting an application, the design may not have been previously publicly accessible (identical or with only minor differences).
- Uniqueness: The overall appearance must be different from previously existing designs. The possible degree of freedom (for example, cutlery has a certain fundamental form) will be taken into consideration.
- Not Due to the Technical Function: The appearance may not be exclusive through the technical function (meaning being able to link to it something else: screw thread).
- No Other Violations: In particular, this concerns violating public order and/or morality as well as violating dually protected designs (collision with a community design).
At the time of application, the Patent Office limits itself to a formal review: innovation, originality, etc. are not assessed or reviewed.
A design patent provides legal protection of use by a third party, particularly in regards to manufacturing, supplying, circulation, importation, exportation, or use. This also includes the identical appearance as well as objects with the same overall design.
Plant Variety Right Protection
This includes special protection of plant species that are unpatentable. Trademarks for production/reproduction, offer, sale, put into circulation, export, import and storage for commercial purposes.
The length is 25 years (hops and potatoes: 30 years).
Register at the federal office for Health and Food Safety and provide sufficient reproduction materials.
See the "Bundesministeriums für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft" homepage for more information.