The term of duration of a patent in Austria is 20 years from the filing date provided that annual maintenance fees are duly paid.
It is possible to obtain supplementary protection certificate (SPC) for a maximum of five years if the patent subject matter refers to medicinal products or plant protection products. The certificate is usually granted for the time period necessary to get marketing authorization. Additional six-month extension can be requested if a research according to a paediatric investigation plan has been conducted.
Annual fees apply to granted patents that have been published in the Official Gazette and become due starting from the sixth year of the filing date. Annual fees cannot be paid earlier than three months before the due date - the last day of the month when the anniversary of the filing date occurs.
Late payment may still be effected within six months after the end of the initial term alongside a 20% surcharge. However, late payment of the first annual fee within six months after the due date is not subject to the surcharge. If not paid on time, the patent expires.
Late payment of the first annual fee due for the European patent can be made within three months without a 20% surcharge. Additional term for late payment with the surcharge is nine months after the expiration of three months.
NOTE: For patents granted or applications with the publication announced prior to July 1, 2005, the due date for payment of annuities is the date of the application publication in the Patent Gazette.
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Annual maintenance fees for utility models in Austria
Utility models in Austria are valid for ten years from the filing date. To keep the utility model in force during this term, annual maintenance fees must be paid starting from the second year. Only annual fees for the years following grant of the utility model must be paid.
Annual maintenance fees can be paid within three months before the due date. The due date for payment of annuities is the filing date of the utility model application.
Non-observance of the time limit does not lead to automatic lapse of the utility model registration; the annual fee may still validly be paid within six months after the due date alongside a surcharge of 20%. If not paid in this period, utility model registration expires.
The first annual maintenance fee for a utility model in Austria that is paid to the Austrian Patent Office can be paid for a period of six months after the due date, which doesn’t incur any surcharge.
The Austrian Patent Office offers utility models owners an opportunity to pay annual maintenance fees not on a yearly basis but on the flat fee basis. The flat fee may be charged for two periods: from 4th to 6th year, and from 7th to 10th year. If following this route for payment of annuities, the due dates for payments are the due dates for payment of the 4th and 7th annual fee.
Industrial design protection in Austria spans over a maximum period of 25 years with the renewal fees being due every five years.
The due date for the payment falls on the last day of the month, when the application for an industrial design has been filed. Owners of registered designs have one year before the due date to pay the fee.
If the term is missed, there is still a possibility to pay the renewal fee up to six months after the due date (a 20% surcharge applies in this case). If the deadline for late payment is missed, the design registration expires.
Upon completion of the registration, multiple designs become independent of each other making it possible to renew the registration partially. It is possible to choose the designs to be renewed. Separate fee is charged for each design for which extension of protection is requested.
Trademark registration in Austria covers 10 years and can be prolonged for further 10-year periods indefinite number of times.
The renewal fee must be paid one year before the protection of the trademark expires. The term for late payment of the renewal fee is six months after the trademark expiry date. Payments made during this six-month period are subject to additional 20% surcharge.
The due dates are calculated in the following manner:
- for trademarks registered before September 1, 2018, the ten-year protection period expires on the last day of the month, when the trademark has been registered (the due date for payment of the renewal);
- for trademarks registered or prolonged after September 1, 2018, the ten-year period of protection ends on the 10th anniversary of the application filing date (the due date for payment of the renewal).
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Restoration for patents, utility models, industrial designs and trademarks in Austria
Request for restoration of a patent, utility model, industrial design or trademark lapsed due to non-payment of annuities or renewal fees must be filed within two months after the elimination of the hindrance that prevented the IPR holder from paying the fee on time and not later than 12 months from the expiration of the applicable time limit.