Nebivolol, limitation of patent claims, Austrian Supreme Court (Oberster Gerichtshof) 19 November, 2009, Case No. 17 Ob 24/09t
A limitation of a patent claim is only admissible if it leads to a narrower scope of protection and does not go beyond the original disclosure of the patent. Under these conditions, the patent owner is free to base an infringement action on a limited version of its claims, irrespectively of initiating formal limitation proceedings.
An application for cost reimbursement by the Main Association of the Austrian Social Insurance Institutions, which contains a declaration of the price and the availability of a generic product, constitutes an offering for sale within the meaning of Section 22 para 1 of the Austrian Patent Act. Defendant therefore can be ordered to withdraw a pending application and enjoined from filing a new one before the patents expires.