AUSTRIA: SPECIAL 301 RECOMMENDATION

UNCLAS VIENNA 000535

SIPDIS

FOR EB/IPE - SWILSON

STATE PASS USTR FOR JCHOE-GROVES

DOC FOR JBOGER, USPTO JURBAN, AND LOC STEPP

E.O. 12958: N/A

TAGS: KIPR ECON ETRD AU
SUBJECT: AUSTRIA: SPECIAL 301 RECOMMENDATION

REFS: A) STATE 24592; B) STATE 30785


1. This message provides post's response to ref a request

for input to the annual Special 301 review of host country

IPR protection practices. According to ref b, the

Biotechnology Industry Organization (BIO) has requested that

the USG place Austria, as well as eight other EU member

states, on the Watch List, because they have not expressly

implemented the EU Directive on Legal Protection of

Biotechnological Inventions (Biopatents Directive,

98/44/EC).


2. The GoA forwarded a draft bill to the Austrian

Parliament in September 2004 that would "implement the

Biopatents Directive virtually word for word," according to

Richard Flammer, Vice-President of the Austrian Patent

Office. Flammer had predicted that parliament would

implement the directive in December 2004. However, it now

appears that parliament will decide on the directive in June


2005. Flammer said that the GoA is still discussing one non-

substantive paragraph of the Patent Law, under which the

directive falls. The Patent Office apparently dispelled

concerns regarding plant protection, which agricultural

experts had previously raised. The Austrian Bioethics

Commission had recommended the implementation as early as

2002, and the Austrian Biotech Industry continues to press

for swift implementation.


3. Flammer told post that, according to a European Court of

Justice (ECJ) decision, the Biopatents Directive does not

necessarily require explicit national implementation. The

verdict of the ECJ against Austria and other EU member

states for not expressly implementing the directive "is

simply a matter of principle," Flammer concluded.


4. COMMENT: Post cannot evaluate whether EU law requires

separate, explicit national implementing legislation for the

Biopatents Directive to provide protection in all member

states. However, we note that if the GoA is correct in its

interpretation of the ECJ's decision, BIO's complaint would

be moot. Austria appears to be moving slowly, but surely,

toward implementation of the Biopatents Directive. Post

does not believe that the seemingly bureaucratic delay in

implementing the legislation justifies Austria's inclusion

on the Special 301 Watch List. Overall, Austria's IPR

protection regime remains solid, and post will continue to

encourage the GoA to implement the Biopatents Directive.

BROWN