20.4. Convention priority: Assessing convention priority claims

Date Published

We do not assess the validity of a convention claim at the formalities stage; we assess whether the applicant has supplied enough detail to support the claim.

Generally, the priority date of a design does not need to be determined unless another design was published in the period between the asserted priority date and the filing date.

Also, when a design is being examined under s 65, examiners cannot raise an objection under s 65 based on the convention details that form part of the registered design. The only basis for raising issues with the priority claim is where there is an objection of lack of newness or distinctiveness that depends upon whether the claim to priority is valid.

Even then, any issues about the validity of the priority date are raised in the context of argument about the correct priority date – not as an objection to the validity of the priority claim itself.

The examiner is not objecting to the details of the claim. The examiner is objecting that the registered design is not new and distinctive when compared to the prior art base. The examiner has sought to clarify the validity of the claim, and it is in fact not relevant (and the Australian lodgement date is instead the priority date). If the applicant is looking to use an overseas convention priority claim in an Australian application, they only have 6 months from the (priority) date of the overseas application to apply and request registration in Australia.

Where the claim is subsequently found to be invalid, we simply disregard it. On this basis we are not objecting to it, as it does not exist.

Essential details

If the application form indicates a claim of convention priority or the applicant lodges a basic application (priority document), we check that the application provides:

  • the date the basic application was made in the convention country
  • the reference number of the basic application (i.e. the number assigned to it by the designs authority in the relevant country)
  • ​​​​​​​the country (or country code) where the basic application was made.

The application must clearly state all these details. If not, we will issue a formalities notice.

The formalities officer does not:

  • ​​​​​​​​​​check whether these essential details are correct – only that they are in the right place and legible
  • check whether the convention priority claim is valid. We will only consider that later, in the examination, if there is an actual need to determine the priority date.
  • require a copy of the basic application. If the applicant provides one, it goes into the case file.

Amended Reasons

Amended Reason Date Amended
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