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PATENTS REGULATIONS 1991 - REG 6.3

Date of patent

  (1)   For paragraph   65(b) of the Act, the date of a patent is as set out in this regulation.

  (2)   For a patent granted under subsection   33(1) or (2) of the Act, the date of the patent is the date that would have been the date of the patent if the patent had been granted on the application for a standard patent the grant of which was opposed under section   59 of the Act.

  (3)   For a patent granted under subsection   33(3) or (4) of the Act, the date of the patent is the date of the innovation patent that was opposed under section   101M of the Act.

  (4)   For a patent granted under subsection   34(2) of the Act, the date of the patent is the date of the patent referred to in subsection   34(1) of the Act.

  (5)   For a patent granted under section   35 of the Act, the date of the patent is the date of the revoked patent.

  (6)   For a patent granted as a result of a declaration under section   36 of the Act, the date of the patent is:

  (a)   if the declaration is made in respect of a complete application--the date that would have been the date of the patent if the patent had been granted on that application; or

  (b)   if the declaration is made in respect of a provisional application--the earlier of:

  (i)   the date 12 months from the date of filing of the provisional specification in respect of that application; and

  (ii)   the date of filing of the complete application referred to in subsection   36(4) of the Act.

  (7)   For a patent granted on a divisional application made under subsection   79B(1) of the Act, the date of the patent is:

  (a)   if the date of the patent was recorded in the Register before 1   January 2000--the date recorded in the Register; or

  (b)   if the Commissioner determined a date of the patent and told the applicant in writing before 1   January 2000--the date determined by the Commissioner; or

  (c)   in any other case--the earliest of:

  (i)   the date of the patent of the first - mentioned application referred to in subsection   79B(1) of the Act; and

  (ii)   the date that would be the date of the patent if a patent had been granted on that first - mentioned application; and

  (iii)   if that first - mentioned application was itself a divisional application or was amended to be a divisional application before filing the later application--the date that would be the date of the patent if a patent had been granted on the divisional application.

  (8)   For an innovation patent granted on a divisional application made under subsection   79C(1) of the Act, the date of the patent is the date of the first patent mentioned in subsection   79C(1).

  (9)   If, under section   223 of the Act, the Commissioner has extended the time for making, under section   38 of the Act, a complete application associated with a provisional application, the date of the patent is the date 12 months from the date of making the first provisional application with which the complete application is associated.

  (10)   If, under section   223 of the Act, the Commissioner has extended the time for making, under subsections   29B(1) and (2) of the Act, a Convention application in relation to a basic application, the date of the patent is the date 12 months from the date of making the first basic application to which the Convention application relates.

  (11)   If a PCT application claims the priority of an earlier application under Article 8 of the PCT, and a circumstance mentioned in an item of the following table applies, the date of the patent is the date 12 months from the date of making the first application mentioned in the item.

 

Circumstances

Item

Column 1

The earlier application was ...

Column 2

and:

1

an application made in Australia more than 12 months before the international filing date of the PCT application

both of the following apply:

(a) a receiving Office has restored priority under Rule   26 bis .3 of the PCT;

(b) the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule   49 ter .1 of the PCT

2

an application made in Australia more than 12 months before the international filing date of the PCT application

the Commissioner has restored priority under Rule   49 ter .2 of the PCT

3

an application made in Australia more than 12 months before the international filing date of the PCT application

the Commissioner has granted an extension of time under section   223 of the Act that has the effect of restoring a right of priority

4

a basic application made more than 12 months before the international filing date of the PCT application, being the first application made in a Convention country for the invention

both of the following apply:

(a)   a receiving Office has restored priority under Rule   26 bis .3 of the PCT;

(b)   the restored priority has not been found to be ineffective by the Commissioner or a prescribed court under Rule   49 ter .1 of the PCT

5

a basic application made more than 12 months before the international filing date of the PCT application, being the first application made in a Convention country for the invention

the Commissioner has restored priority under Rule   49 ter .2 of the PCT

6

a basic application made more than 12 months before the international filing date of the PCT application, being the first application made in a Convention country for the invention

the Commissioner has granted an extension of time under section   223 of the Act that has the effect of restoring a right of priority

 


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