No extensive application of the reversal of the burden of proof.

The Austrian Patent Act provides for a reversal of the burden of proof in a very specific case: If a patent is granted for a method or a process for the production of a novel product, any product having the same composition is considered as produced according to the patented method or process until proof of the contrary.

This leaves no room for an analogous application of the more generous provision in § 1 para 5 of the Act against Unfair Competition, expressed the Austrian Supreme Court in its most recent decision 4Ob101/14b of July 17, 2014.

This does not exclude a shift of the burden of proof to the defendant in the very exceptional case that the respective facts reach deep into the defendant’s sphere.  Mere difficulties of proof, however, are not enough.

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