11.3. Excluded designs: Checking the priority status of an excluded design

If an applicant has applied for registration of a design that was excluded from an initial application, claiming the priority date that the design would have had if it had remained in the initial application, the examiner needs to check that the claim is validly made.

Is the priority claim valid?

The claim is valid if, at the time the current application was lodged:

• a request to amend the initial application had been received and the initial application had not lapsed or been withdrawn

   

• none of the designs in the initial application had been registered or published.​​​​​​​​​​​​​​

Has the design been excluded from the initial application?

For an applicant to claim the priority date of an initial application, the initial application must have firstly been amended under s 28 to exclude the design(s) subsequently filed in the current application. An application for an excluded design must be filed after the request to amend the initial application.   

If the design has not been excluded from the initial application, the formalities officer will notify the applicant that the claim for priority based on the initial application must be removed. This will result in the priority date of the design being the Australian filing date of the new application.