Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) Subject to regulations 3.13 and 3.14 and subregulation (2), the priority date of a claim of a specification is the earliest of the following dates:
(a) the date of filing of the specification;
(b) if the claim is fairly based on matter disclosed in 1 or more priority documents, the date of filing the priority document in which the matter was first disclosed;
(c) if the specification is a complete specification filed in respect of a divisional application under section 79B of the Act and the claim is fairly based on matter disclosed in the specification referred to in paragraph 79B (1) (a) of the Act -- the date mentioned in subregulation (2C);
(d) if the specification is a complete specification filed in respect of a divisional application under section 79C of the Act and:
(i) the claim is fairly based on matter disclosed in the specification referred to in subsection 79C (1) of the Act; and
(ii) examination of the divisional application is requested within 2 months from the date of the grant of the divisional application;
the date mentioned in subregulation (2D).
(2) For the purposes of paragraph (1) (b):
(a) if the application that relates to the specification containing the claim is a complete application -- a provisional application that is associated with that complete application in accordance with section 38 of the Act is a priority document; and
(b) if the application that relates to the specification containing the claim is a Convention application, a document of any of the following kinds is a priority document:
(i) a basic application that is related to the Convention application;
(ii) a specification, or another document filed in respect of, and at the same time as, a basic application that is related to that Convention application; or
(iii) a specification in respect of a basic application that is related to that Convention application, being a specification that was filed after the basic application was made;
(c) if:
(i) the application that relates to the specification containing the claim is a PCT application that, under Article 8 of the PCT, claims the priority of an earlier application; and
(ii) that earlier application is:
(A) an application made in Australia not more than 12 months before the international filing date of the PCT application; or
(AA) an application made in Australia more than 12 months before the international filing date of the PCT application, for which:
(I) a receiving Office has restored priority under Rule 26 bis .3; and
(II) the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule 49 ter .1; or
(B) a basic application, made not more than 12 months before the international filing date of the PCT application, that is the first application made in a Convention country in respect of the invention; or
(BB) a basic application made more than 12 months before the international filing date of the PCT application, that is the first application made in a Convention country in respect of the invention, for which:
(I) a receiving Office has restored priority under Rule 26 bis .3; and
(II) the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule 49 ter .1; or
(C) a basic application made after a basic application referred to in sub‑subparagraph (B);
that earlier application, and a specification filed in relation to that earlier application after it was made, are priority documents.
(2A) For the purposes of paragraph (1) (b) and subregulation (2), 'filed' includes filed with the Patent Office and filed with a corresponding Office of another country.
(2B) A reference in subregulation (2) to a basic application does not include a basic application that has been disregarded by the Commissioner under section 96 of the Act.
(2C) The date for a specification to which paragraph 3.12 (1) (c) applies is the date that would have been the priority date of the claim if it had been included in the specification referred to in paragraph 79B (1) (a) of the Act.
(2D) The date for a specification to which paragraph 3.12 (1) (d) applies is the date that would have been the priority date of the claim if it had been included in the specification referred to in subsection 79C (1) of the Act.
(3) For paragraphs 3.12 (1) (c) and (d), a claim is not fairly based on the specification referred to in paragraph 79B (1) (a) or the specification of the first patent referred to in subsection 79C (1) of the Act if, in order to comply with paragraph 40 (2) (a) of the Act, the deposit requirements must be satisfied and on the date of making the divisional application:
(a) the requirement specified in paragraph 6 (a) of the Act is not satisfied in relation to the specification referred to in paragraph 79B (1) (a) or the specification of the first patent referred to in subsection 79C (1) of the Act; or
(b) the period prescribed in subregulation 1.5 (1) has ended and the requirements of paragraph 6 (c) of the Act are not satisfied in relation to the specification referred to in paragraph 79B (1) (a) or the specification of the first patent referred to in subsection 79C (1) of the Act.
(4) If a PCT application claims priority from a basic application, a specification or other document filed in respect of, and at the same time as, a basic application, section 96 of the Act is taken to apply to the PCT application as if it were a Convention application.