Missed your national phase deadline? There's hope!

13 Jan 2019

Most deadlines set by the Australian Patents Act 1990 are extendable after the deadline has passed. The deadline for national phase entry is no exception.


In most cases, the grant of the extension of time is discretionary. In such cases, the failure to meet the national phase deadline must be either the result of an "error or omission" by the Agent or the Applicant; or circumstances beyond the control of the Applicant.


Some examples of errors or omissions presented in extension of time applications are: failure to make a diary entry; a date error in connection with the deadline; a misunderstanding of instructions; failure to seek instructions from Applicant; and failure by the Applicant to provide instructions.


It is important that there was always an intention to enter national phase in Australia. 


In practice, the application for extension of time must be supported by declaratory evidence that sets out the causal connection between the error or omission and the failure to do the relevant act. 


The circumstance provision is essentially a "force majeure" provision. Delays by post and courier have constituted the major source of extensions under this category. However, these days, these sources would not likely be available. Anticipation of a court judgement has been held to be a circumstance beyond a person's control. Sickness or accident have also satisfied the requirement of circumstances beyond control.


Lack of funds is not regarded as a circumstance beyond the control of the Applicant.


An inordinate delay in filing the request for an extension of time could be regarded as detrimental to the public interest and so rejected. It is possible to file the request together with the prescribed fees and, within two months of the filing, provide the declaratory evidence in support.  


Contact us if you need help with a missed deadline. 


Written by Barry Eagar


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Eagar & Associates Pty Ltd is a wholly-owned subsidiary of Eagar & Associates Holdings Pty Ltd. Each entity is a private incorporated company. Each registered attorney of Eagar & Associates Pty Ltd is bound by the Code of Conduct for Trans-Tasman patent and trade mark attorneys 2018