D03.2 Requesting examination - requirements

The requirements for requesting examination are:

• The request must be filed in accordance with the approved form.
  While it is preferred that requestors use a form that has been ‘pre-approved’ by the Registrar, other forms may be used as long as they contain the information required by the Registrar.
• A fee is payable by the person requesting the examination.
  The fee is due on the day of filing the request. If the fee is not paid, an ‘Invitation to pay’ will issue. The requestor will have 2 months to pay that fee.
• If the requestor is the design owner and the fee is not paid within the two month period, the design ceases – reg 11.04.
• If the requestor is a third party and the fee is not paid within the two month period, the request for examination is taken as not being filed – Reg 11.06.

Consequently, no action will occur in relation to a request for examination until such time as the relevant fee has been paid.

• The request may contain material in relation to the newness and distinctiveness of the design [see s.64(2)].
• If the request if filed by a third party, any such material must be provided in duplicate [r5.01(b)]– with the Registrar sending one copy to the owner.
• Where the requestor only provides a single copy of that material, the Registrar may treat the request as not being in accordance with the approved form – and act under regulation 11.27(3)(a) to return the documents to the requestor. It may be assumed that the Registrar will return the documents unless the amount of material to be copied is very small.
• Similarly, if the copy of the material that is provided is of poor legibility – the Registrar may act under regulation 11.27(3)(a) and return the documents to the requestor. Alternatively the Registrar may treat the request as having been filed, and examine on the basis of the material supplied to the extent that the disclosure in those documents can be clearly identified.
• A fee is payable by the owner, if a third-party requests examination
  Where a third party has requested examination, the request and any accompanying material is forwarded to the owner. The owner has two months from the date of that notification to pay fee item (4)(b) [reg 11.05(1)]. If the fee is not paid, the design ceases [s.48(1)(b)].

Consequently examination will not commence on the design until the owner has paid this fee.

Comment.
While the regulations do not prescribe a procedure for handling material filed pursuant to s.64(2), the practice followed is to send the owner a copy of the material at this stage (and the 2nd copy is clearly for that purpose).  If the owner has had insufficient time to deal with the material as a result of a delay in being provided the material, the basis for an extension of time [s.137(1)] for completing examination is likely to exist.