Higher Regional Court of Vienna: Appeal against interruption order

This decision concerns an appeal to the Higher Regional Court of Vienna against an interruption order of the Commercial Court of Vienna.

The patents-in-suit protect a cooktop which, together with a device for extracting cooking fumes and for operating the cooktop, forms an assembly unit for extracting cooking fumes downwards in a central area (and not upwards via an extractor hood).  The second patent-in-suit (patent II) relevant to the appeal proceedings protects a cooktop which is characterized by the fact that the cooking fumes can be transported vertically upwards by a rotating fan wheel into a fan housing provided above an intake chamber. Numerous oppositions (but not by the defendant) were filed with the EPO against patent II, which have not yet been decided. The court of first instance dismissed a request for protective measures (unopposed) on the grounds that the characterizing part of the patent II went beyond the original disclosure. The original disclosure was limited to a device with a plurality of radial fans and was therefore, more likely than not, invalid. With the contested order, the court of first instance interrupted the proceedings with regard to patent II pursuant to § 156 (3) Austrian PatG until the opposition proceedings before the EPO had been finally concluded. 

The appeal against the interruption order is not justified. The parent application shows a design with two fan wheels throughout. The only exception is Fig. 17, which only shows a single fan wheel and which, according to the description, shows a schematic view of a hollow cylindrical grease filter (6) which is only connected to a single exhaust fan (38). Figure 18, on the other hand, shows a schematic view of a hollow cylindrical grease filter (6), which is connected to two exhaust fans (38) located opposite each other. Figure 17, in conjunction with Figure 18, obviously only serves to illustrate the advantages of an arrangement with two or more radial fans (used according to the invention). However, this does not disclose the invention of a single fan wheel. Furthermore, only one "radial" fan is disclosed in the entire parent application. However, claim 1 is not limited to such fans, but includes any type of fan with a fan wheel, e.g. also axial fans.  The claim is therefore probably impermissibly broadened and probably goes beyond the disclosure of the parent application. 

The interruption is also not contrary to Union law, specifically Art 3 (1) of Directive 2004/48/EC, and the right to a fair trial under Art 6 ECHR: The reasonableness of the duration of the proceedings must always be assessed in the light of the individual circumstances of the case, taking into account the criteria laid down in the case law of the European Court of Human Rights (ECtHR). These criteria are, in particular, the complexity of the case, the conduct of the parties and the conduct of the state authorities. A general rule according to which every (patent) procedure lasting several years violates the right to a fair trial cannot be inferred from the case law. If one were to follow this argument, any opposition proceedings before the EPO, which according to the applicant's submission would take around four years, would also be contrary to Art 6 of the Human Rights Convention and Art 47 of the EU Charter of Fundamental Rights (OLG Wien 26.01.2024, 33 R 92/23a).