20.5. Convention priority for excluded designs and applications that include more than one design

In cases where an application that claims convention priority:

• is amended to exclude a design; or
• includes more than one design

The priority date of a design depends on whether it was included in the basic application – i.e. the application in the convention country. This is because the entitlement to claim convention priority applies to specific design(s), and not necessarily all designs included in an application. Priority claims should be expressly made each time an application is submitted. Their validity may be confirmed at examination (if the priority date is relevant in determining whether a design under examination is in fact new and distinctive when compared to designs in the prior art base).

Excluded designs

If a convention priority application is amended to exclude a design from it and the applicant subsequently applies separately for the excluded design, they can claim the same priority date for that design as they did in the original (or initial) application. This means that if the initial application claimed convention priority for that particular design, they can also claim that priority date in the new application.

This also applies to excluded designs as part of transitional applications (see s 160(3) and reg 12.03(3)).

It is important to note that the excluded design application is not in itself a convention application. If the applicant for the excluded design is claiming the same convention priority as in the earlier application, they must include this detail in the new application. When determining the priority date of an excluded design for which the initial application claimed convention priority, we should not assume that the convention priority date applies to the new application. However, if the new application repeats the claim, we assume that this is the priority date.

​​​​​​​

Applications that include more than one design

If an application claiming convention priority includes more than one design, the convention priority date does not automatically apply to all of the designs. The detail can however be included as part of each design applied for.

If a single design application claiming convention priority is submitted, and includes further designs, the subsequent request(s) to convert the further designs into application(s) will require the applicant to include the relevant convention priority detail that applies to each design.