The 4th COVID-19 law has passed the Bundesrat on 04.04.2020 and is expected to enter into force on 06.04.2020.
1. "moratorium on time limits" of the 2nd COVID-19 Act does not include time limits in proceedings before the Patent Office
Under the 2nd COVID-19 Act (Federal Law Gazette I. No. 16/2020), which entered into force on 22.03.2020, the 1st COVID-19-Justice Accompanying Act (1st COVID-19-JuBG) and the COVID-19-Administrative Accompanying Act (COVID-19-VwBG) were enacted, among others, ordering that, due to the effects of the restrictions on public life resulting from the current "Corona crisis"
- all procedural deadlines in judicial proceedings, and
- all time limits in pending administrative proceedings to which the General Administrative Procedure Act (AVG), the Administrative Penal Act (VStG) or the Administrative Enforcement Act (VVG) apply,
are interrupted until 30.04.2020, if the respective deadline has not yet expired on 22.03.2020 or is triggered after 22.03.2020.
However, the statutory "moratorium on time limits" thus granted did not cover time limits in proceedings before the Austrian Patent Office in patent, utility model, protection certificate, trademark, design and semiconductor protection matters as well as in plant variety protection matters.
The general interruption of time limits ordered under the 1st COVID-19-JuBG did not apply because patent office proceedings are not "judicial proceedings" but proceedings before an administrative authority. However, since - by virtue of an express statutory provision (Art I (3) (1a) EGVG) - the administrative procedural laws are not applicable to these proceedings, the applicability of the "moratorium on time limits" regulated by the COVID-19-VwBG was also not relevant.
2. "moratorium on time limits" of the 4th COVID-19 Act
This gap has now been closed by the "Federal Act Concerning Accompanying Measures to COVID-19 in the Field of Industrial Property Protection" (COVID-19-GewRS-BG), which was enacted as part of the 4th COVID-19 Act. With this law, the continuation of all statutory procedural and substantive deadlines under the Patent Act was suspended, in particular also the deadlines for
- the filing of an opposition under Sec. 102 (1) Patent Act,
- the filing of an opposition under Sec. 29a (1) MSchG,
- the filing of a petition for revocation under Sec. 49 (3) Patent Law,
- claiming priority under Sec. 93a f PatG or Sec. 24 (2) MSchG, respectively
- to divide a patent application
- for the submission of a German translation of a European patent, and
- for a branching of a utility model application.
As a result of the statutory suspension, the period between 16.03.2020 and 30.04.2020 is not taken into account for the deadlines covered by the COVID-19-GewRS-BG. I.e., a deadline whose expiration would fall within this period is retroactively stopped as of 03/16/2020 and does not continue to run until 04/30/2020.
Not affected by this regulation are the official time limits, i.e. those time limits which may be set by the patent office itself according to free or bound discretion (see below), the appeal time limits, for which a separate time limit regime applies (see below), as well as time limits which are regulated by EU law (such as the six-month time limit for filing a protection certificate according to Art 7 (2) SZ-VO).
It is also noteworthy that the deadlines for the payment of fees under the Patent Office Fees Act (PAG), in particular the six-month grace periods for the payment of renewal and renewal fees, are not covered by the COVID-19 GewRS-BG. This means: For annuity payments for patents or utility models as well as renewal fee payments for trademarks or designs, there are no changes in the Corona crisis.