Patents in Austria, and How They Differ from a Trademark

Austria keeps three registers for three different things and one office runs them all. What sorts them is what kind of thing you have: a trademark is a sign that distinguishes one undertaking's goods or services from another's, a patent is a technical solution to a technical problem, and a Gebrauchsmuster, the utility model, is a technical invention on a shorter and cheaper route. One product can need more than one of them at once, and what separates them in practice is what the office does before it says yes.

PatG § 1 Abs. 1 sets three conditions and no others: new within the meaning of § 3, not following in an obvious way from the state of the art for a person skilled in the art, and industrially applicable. Commercial promise is irrelevant, and § 99 Abs. 1 says so in terms.

Abs. 3 then lists six things not regarded as inventions at all: discoveries, scientific theories and mathematical methods; the human body at any stage of its formation; the mere discovery of a component of it, including a gene sequence; aesthetic creations; schemes, rules and methods for mental acts, for games or for doing business, and programs for data-processing installations; and presentations of information.

Abs. 4 is the sentence that does the work: those six are barred only so far as protection is sought for them as such. A control method that happens to run in software is not disqualified because software is on the list. A business idea dressed in technical vocabulary still is.

§ 2 Abs. 1 adds a second class, of inventions that pass § 1 and are refused anyway: those whose exploitation would offend public policy or morality, human cloning and germline modification named expressly, and methods of surgical or therapeutic treatment and diagnostic methods practised on the human or animal body. The substances used in those methods remain patentable.

This is the paragraph that decides most real cases, and the one founders meet too late.

PatG § 3 Abs. 1 defines the state of the art as everything made available to the public before the priority date of the application, by written or oral description, by use, or in any other way. No geographical limit, no language limit, and no exception for your own disclosure. A conference talk, a trade-fair stand, a product page, a crowdfunding video: each is a description made available to the public, and each can be held against you.

Abs. 4 allows exactly two escapes, both limited to a disclosure made not earlier than six months before filing, and both about how the disclosure happened rather than who made it: an evident abuse to the detriment of the applicant or his predecessor in title, and display at an official or officially recognised international exhibition within the meaning of the convention at BGBl. Nr. 445/1980. Telling the world about your own invention is neither.

What follows is a sequence rather than a rule of thumb: the application goes in first and the announcement comes afterwards. Under § 87 Abs. 2 the filing date is the day the application reaches the Patent Office, so the gap you need can be a day.

Here the two rights part company completely, and a reader who knows one will get the other wrong.

On the trademark side, MSchG § 20 Abs. 1 has the office examine an application for lawfulness only. Earlier trademarks are not its business, which is why an Austrian trademark is registered first and opposed afterwards.

On the patent side the office does the work. Under PatG § 99 Abs. 1 every application is examined by the Technical Department, and PAG § 3 Abs. 1 calls the fee for it a search and examination fee: the office searches the state of the art and tests the application against §§ 1 to 3 before anything is granted. Where it finds no patentable invention, § 99 Abs. 3 makes the examiner say so with reasons and set a period to reply.

Three dates follow from the statute and nothing else. Under § 101 Abs. 1 the application is published without delay after eighteen months from the filing or priority date, with the search report attached where it is ready (Abs. 2). From the day of that announcement in the Patentblatt, Abs. 5 gives the applicant a provisional claim to reasonable compensation against anyone using the subject matter without authority. The legal effects of the patent itself begin with the announcement of the grant (§ 101c Abs. 2), and that announcement starts four months in which anyone may oppose, on the closed list of grounds in § 102 Abs. 2.

No statute fixes how long the examination takes, and this article gives no figure for it.

The Gebrauchsmuster is not a second-class patent. It is a different bargain, and two of its terms are worth knowing before the patent route is taken by default.

It has a grace period. GMG § 3 Abs. 4 disregards a disclosure made not earlier than six months before the filing date where it goes back to the applicant or his predecessor in title, or to an evident abuse against them. That first limb is the one the Patentgesetz does not have. An invention already shown by its own inventor can be dead for a patent and still open as a utility model, if the six months have not run.

It covers program logic. GMG § 1 Abs. 2 provides that the program logic underlying programs for data-processing installations is regarded as an invention, and says so immediately before Abs. 3 repeats the patent law's exclusion of the programs themselves. Abs. 1 reaches inventions in all fields of technology, and the exclusion list at § 2 is short: public policy and morality, methods of surgical or therapeutic treatment and diagnostic methods on humans, and plants, animals, biological material and processes for breeding them.

What is given up is certainty. § 18 Abs. 1 says in terms that novelty, inventive step and industrial applicability are not examined in the application procedure: the office issues a search report under § 19 and registers the right afterwards even if that report is unfavourable, and under § 28 Abs. 1 anyone may then apply to have it declared void on the same §§ 1 to 3 grounds, at any time. The term under § 6 runs from publication and ends at the latest ten years after the end of the month of filing.

State fees are facts of law, so each one below carries the provision that sets it. Our own fee is quoted on request.

The two columns differ for a reason peculiar to this office. PAG § 31 Abs. 3 authorises the President of the Patent Office to raise every fixed rate in the act once a year by ordinance to offset inflation, and requires that ordinance to be published in the Patentblatt by 30 June, taking effect from 1 July of the year of publication. The Patentblatt is not part of the consolidated federal law database, so the ordinance cannot be read there. The act sets the rate; the office's published schedule says what is payable today. A flat document fee, the Schriftengebühr, sits outside the act altogether and is included in the office's figures below.

An Austrian patent is not bought once. Under PAG § 6 Abs. 1 an annual fee falls due for the sixth year and every year after it, counted from the last day of the month in which the filing date falls, and only for years after the grant has been announced. The amounts in Abs. 2 climb from EUR 100 for the sixth year to EUR 1,700 for the twentieth, EUR 12,300 in total; the fifteen amounts the office currently publishes total EUR 12,839, the same ladder after the § 31 Abs. 3 valorisation.

Abs. 4 governs the timing and it is unforgiving. Each fee is due on the last day of the month matching the filing month, may be paid at the earliest three months before and at the latest six months after, and any payment made after the due date carries a surcharge of 20 percent, except the first annual fee payable to the office. Miss the six months and PatG § 46 Abs. 1 Z 2 extinguishes the patent. There is no renewal application to forget and no reminder the law makes binding: the payment is the renewal.

Two variations are worth knowing. PAG § 7 Abs. 1 lets the President defer the search and examination fee, the claims fee and the publication fee until the sixth annual fee falls due, on proof that the applicant is without means or where the application evidently aims at generating or saving energy or reducing greenhouse-gas emissions, in either case only if a grant does not appear obviously hopeless. It is not available for a utility model. Under § 9, a European patent validated for Austria pays its annual fees to the Austrian office at the same § 6 Abs. 2 rates, from the year after the one named in Article 86(2) EPC.

The utility model runs a shorter ladder under § 16: fourth year to tenth, EUR 50 to EUR 450 in the act, EUR 52 to EUR 470 as published, EUR 1,982 in total. Abs. 4 and Abs. 5 offer two lump sums instead, published at EUR 376 for years four to six and EUR 1,410 for years seven to ten, which the arithmetic favours by EUR 196.

Two different things get called a patent search in Austria, and they answer different questions.

The first is the register. PatG § 80 Abs. 1 has the Patent Office record the number, title, filing date and any priority of granted patents, the proprietor and the representative, and every later event: lapse, revocation, nullity, transfers, pledges, licences and disputed entries. Abs. 3 is one sentence and it is the useful one: inspection of the patent register is open to anyone. The office publishes it free as see.ip, covering patents, utility models and supplementary protection certificates with effect in Austria alongside trademarks and designs. That tells you what exists and who owns it, not whether your own idea is new.

The second is a search of the state of the art, which the office performs as a service rather than as part of any application. PatG § 57a obliges it, on request, to produce written searches on the state of the art for a specific technical problem and, where asked, a written opinion on whether a patentable invention exists against it. A request for an opinion has to come with drafted claims, because the opinion is about the claims. The fees are in PAG § 14 and appear in the table above.

PatG § 77 is a single sentence: only lawyers, patent attorneys, notaries and the Finanzprokuratur are entitled to represent parties professionally before the Patent Office. That is a reserved activity, and it is why this page describes the route and the authority and does not offer to walk it for you.

§ 21 adds the residence rules. A representative appearing before the office must have a domicile or an establishment in Austria, subject to the professional rules for lawyers, patent attorneys and notaries (Abs. 1). Under Abs. 4 someone with neither domicile nor establishment in Austria may assert rights before the office only through one of the § 77 representatives, but where the domicile or establishment is in the EEA or in Switzerland an agent for service resident in Austria is enough instead, and for the office's service and information offerings, including the § 57a searches, neither is required. This is not the same test the trademark side applies.

What we do is the company around the invention. The applicant named on the filing is the proprietor entered in the register, so who that is gets decided first, and what it takes to form an Austrian GmbH is the usual first question. We handle the register work, we deal with the trademark side directly, and where a filing is the next step we introduce an Austrian Patentanwalt and work alongside them. We do not file or prosecute patents, and nobody can promise you a grant.

Read on 18 September 2026 in the consolidated text published by the Bundeskanzleramt as open data, one document per paragraph and per version.

• Patentgesetz 1970, BGBl. Nr. 259/1970 (Wiederverlautbarung), Gesetzesnummer 10002181: §§ 1, 2, 3, 21, 22, 28, 46, 57a, 77, 80, 87, 91a, 99, 101, 101c and 102, in the versions in force on that date.
• Gebrauchsmustergesetz, BGBl. Nr. 211/1994, Gesetzesnummer 10003230: §§ 1, 2, 3, 4, 6, 18, 19, 22, 27 and 28.
• Patentamtsgebührengesetz (PAG), BGBl. I Nr. 149/2004, Gesetzesnummer 20003819: §§ 3, 4, 5, 6, 7, 9, 14, 15, 16 and 31.
• Markenschutzgesetz 1970, BGBl. Nr. 260/1970, for the trademark column of table 1: §§ 1, 19, 20 and 29a.
• Österreichisches Patentamt: the schedules of application and publication fees, of annual fees and of procedural fees, the English utility-model page and the see.ip register database, all read the same day.