D11.8 Common Deficiencies

Date Published

Common deficiencies that occur in applications for an extension of time under section 137 are:

  • the request is for the incorrect period.
  • the request is in respect of the incorrect action - particularly in respect of filing an application covering excluded designs.
  • the request is in respect of a matter that cannot be extended (e.g. requests to file a first-instance application).
  • the declaration is of low evidentiary value by relying upon hearsay ("I declare that the [foreign] associate has told me that his client has told him that….) - particularly in situations where there is no apparent reason (other than mere inconvenience) why the person having the direct knowledge of the circumstances cannot provide a declaration. This is to be contrasted with the situation where "person X, formerly of our employ" committed an error, where hearsay evidence may be quite appropriate.
  • declarations that apparently provide 'selective' extracts of supporting documents whilst avoiding documents that may be less favorable to their case. (As a particular subset of this situation - declarations which refer or allude to documents as supporting their case, but fail to provide copies of them).
  • The request does not refer to all matters that need to be dealt with consequential on the request being granted – such as the time for requesting registration (for extensions of the priority period), and potentially the time for requesting an extension of term (for extensions of the time for completing examination).