19.3. Priority date: Multiple bases for priority

Under the Designs Act, there are several bases for having a priority date.

The fact that a design is entitled to a priority date on one basis does not mean it is not entitled to a priority date on a different basis. For example, a design could have a priority date based on exclusion from an earlier (initial) design application and also have a priority date based on a convention application filed in the intervening period.

Where the design has been excluded from an earlier application, and that earlier application claimed convention priority, the priority date of the excluded design is based on the priority date it had in the earlier application. If the excluded design was included as part of the basic application, the priority date of this application applies to the latest excluded application. 

While the priority date of the design may ultimately be based on a convention claim, it is important to note that the excluded design application is not in itself a convention application. If the applicant seeks to claim the convention priority included in the initial Australian application, they should include this detail in the excluded application. When trying to determine what the priority date of an excluded design is, where a convention claim was previously included, we should not assume that the claim must apply. However, where the claim is again included in the excluded application, we assume this is the priority date.

There is a common misconception that if the initial application includes a convention claim, excluded application(s) automatically receive this priority date. That is not always the case. They receive the date the design would have received in the initial application.

​​​​​​​While the initial application may include a convention claim, that claim may not apply to design(s) that have been excluded. For example, if the initial application included 7 designs but the basic application only applies to one of those designs, the priority date of the other 6 is the Australian lodgement date of the initial application.