US embassy cable - 05VIENNA535

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