In Australia, the due date to file the national phase application is within 31 months from your earliest priority date. That’s either the date you filed a provisional application (if you filed one before your PCT application), or the filing date of your PCT application, if there was no provisional.

Is Late National Phase Entry into Australia Possible?

Unlike some countries like Canada or China, Australia does not have explicit provisions for late national phase entry. However, relief may be available under Section 223 of the Patents Act 1990, which provides a general mechanism for extensions of time.

An applicant may be granted an extension, sometimes up to 12 months or more, if they can demonstrate-

  • a clear intent to enter the national phase before the 31-month deadline
  • an error or omission by the person concerned or by their agent (Fee payable – AU$100 for each month or part of a month for which the extension is sought)
  • circumstances beyond the control of the person concerned (Fee payable – AU$100)
  • circumstances where due care has been taken (Fee payable; time limits apply – AU$100 for each month or part of a month for which the extension is sought)
  • prompt action was taken once the error was discovered
  • full and frank declaration(s) explaining the circumstances

That being said, lack of funds or change of mind after missing the deadline is not considered sufficient.

IP Australia Fees related to National Phase Filing When the Date Is Missed–

  • AU$400 national phase entry fee from IP Australia
  • AU$100 per month for the extension (non-refundable if the extension is denied, although the main filing fee is refunded)

Given the complexity of these requirements, we strongly encourage you to seek professional advice when preparing late entry requests.

What Details We Need to Help You File National Phase Patent Application in Australia?

To proceed with filing a National Phase Patent Application in Australia, if the PCT application has already been published, our firm — or any designated Australian IP attorney firm — will require the following:

  • PCT Application Number

If the PCT application has not yet been published, the following additional documents and details will also be needed:

  • A copy of the patent specification (or a verified English translation, if originally filed in another language)
  • Patent bibliographic details, including:
    • Inventor name(s)
    • Applicant name and address
  • Details of any requested changes to the bibliographic information, if applicable

In Australia, power of attorney is not required to file the National Phase Patent Application.

What Details We Need to Request Examination Along with Filing?

In Australia, filing a request for examination is optional at the time of filing a National Phase Patent Application. The request must be filed within 5 years from the Australian filing date or earlier if a direction to request examination is issued by IP Australia — which often occurs before the standard deadline.

If no amendments are proposed:

Please provide:

  • A formal request for examination
  • Indication of whether you wish to request postponement of acceptance (The postponement of acceptance allows an opportunity to amend the specification before acceptance.)

If amendments are to be proposed:

Please provide:

  • A mark-up version of the amended specification
  • Please note: If Article 19 or 34 amendments have already been filed and the PCT application has been published, re-submission of those amendments is not required. Otherwise, a marked-up specification is necessary
  • Comments regarding the amendments, e.g., support in the specification, clarification on basis, etc. (Optional)
  • Details of any requested changes to the bibliographic information, if applicable
  • Indication of whether you wish to request postponement of acceptance.

Fees related to Request for Examination:

  • AU$ 550 Request for Examination Fee from IP Australia
  • Please note: If there are more than 20 claims, there is no additional fee at the time of filing the request for examination. However, additional claim fees will be payable upon issuance of the examination report or upon acceptance, as follows:
    • AU$ 125 for each of the 21st to 30th potential claims
    • AU$ 250 for each potential claim in excess of 30
    • There are no additional charges based on the number of pages in the patent specification in Australia

Once you have filed the National Phase Application, and wish to know the steps involved, you can read the Australian Patent Application Stages.

How We Can Help?

The LexGeneris Team can file your National Phase Application within 24 hours of receiving your formal instructions.

If you have missed the National Phase filing deadline, please let us know the circumstances under which the deadline was missed. We will assess the situation promptly and advise you on possible remedies, including filing a request for extension of time, if applicable.

Contact us

Contact us to learn more about how LexGeneris can assist you with all your intellectual property needs. You can also schedule a no-cost consultation with our team of expert IP Attorneys Australia, IP Attorneys India, and IP Attorneys New Zealand

 

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