PATENTS REGULATIONS 1991 - REG 3.13A Priority date for PCT application
PATENTS REGULATIONS 1991 - REG 3.13A
Priority date for PCT application(1) This regulation applies to a claim if:
(a) the circumstance mentioned in subregulation (2) (a prescribed circumstance for paragraph 43(2A)(a) of the Act) applies to the invention defined in the claim; and
(i) a document mentioned in subregulation (4) (a prescribed document for paragraph 43(2A)(b) of the Act) clearly discloses the invention in the claim; or
(ii) 2 or more of those documents (a prescribed set of prescribed documents for paragraph 43(2A)(b) of the Act), considered together, clearly disclose the invention in the claim.
(2) For paragraph ( 1)(a), the circumstance is that the specification containing the claim that defines the invention was filed for a PCT application, and:
(i) the PCT application claims the priority of an earlier application under Article 8 of the PCT; or
(ii) the PCT application has been amended to include a claim to priority from an earlier application that, at the time of filing the PCT application, was a claim to priority that could have been made under Article 8 of the PCT; and
(i) the earlier application was made in Australia no more than 12 months before the filing date of the PCT application; or
(ii) the earlier application was made in Australia more than 12 months before the filing date of the PCT application, and:
(A) a receiving Office has restored the priority under Rule 26 bis .3, and the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule 49 ter .1; or
(B) the Commissioner has restored the priority under Rule 49 ter .2; or
(C) the Commissioner has granted an extension of time under section 223 of the Act that has the effect of restoring a right of priority; or
(iii) the earlier application is a basic application that was the first application made in a Convention country in relation to the invention, and:
(A) the earlier application was made no more than 12 months before the filing date of the PCT application; or
(B) the earlier application was made more than 12 months before the filing date of the PCT application, and a receiving Office has restored the priority under Rule 26 bis .3, and the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule 49 ter .1; or
(C) the earlier application was made more than 12 months before the filing date of the PCT application, and the Commissioner has restored the priority under Rule 49 ter .2; or
(D) the earlier application was made more than 12 months before the filing date of the PCT application, and the Commissioner has granted an extension of time under section 223 of the Act that has the effect of restoring a right of priority; or
(iv) the earlier application is a basic application that was made after a basic application mentioned in subparagraph ( iii).
(3) For the purposes of this regulation, if a provisional specification was filed for a basic application when the application was made, a complete specification later filed for the basic application is taken to be another basic application from which the PCT application claims priority, made on the day when the complete specification was filed.
(4) For paragraph ( 1)(b), the documents are the documents filed for the earlier application at the time the application was made.
(5) Subject to regulation 3.12, the priority date is:
(a) the date when the earlier application was made; or
(b) if there is more than one earlier application--the date the earliest of those applications was made for which paragraph ( 1)(b) is satisfied.
Prescribed circumstances for micro - organisms
(6) For paragraph 43(2B)(b) of the Act, the prescribed circumstances for a disclosure that requires a description of a micro - organism are as follows:
(a) the deposit of the micro - organism with a prescribed depository institution, in accordance with such provisions of the Budapest Treaty as are applicable, occurs on or before the date when the documents mentioned in subregulation (4) are filed;
(i) a document mentioned in subregulation (4) includes the relevant information on the characteristics of the micro - organism that is known to the applicant at the time the documents are filed; or
(ii) 2 or more of those documents, considered together, include the relevant information on the characteristics of the micro - organism that is known to the applicant at the time the documents are filed;
(c) the requirements of paragraph 6(c) of the Act are
satisfied by the complete specification that contains the claim.