11.2. Excluded designs: Priority date of excluded designs

The benefit of filing an excluded design application is that the design/s are able to retain the same priority date that they had under the initial application (s 27(1)(c) and Reg 3.08). 

Where an application for an excluded design meets the requirements of s 23, it will be considered to have retained the priority date claimed in the initial application.

Where an application for an excluded design does not meet those requirements, it may not be considered valid and therefore may not be able to claim the priority date listed in the initial application. For instance, if the applicant has failed to file a request to amend the initial application under s 28, then a notification will be issued to the applicant advising that the claim for priority will need to be removed. 

When an application for an excluded design is filed, an assessment will be conducted to ensure that the designs in the excluded design application were disclosed and match the corresponding designs contained within the initial application. Additionally, it will be verified that a request to amend the initial application to exclude those designs was made under s 28.

Note that upon receiving a request to amend an initial application to exclude designs the Registrar provides a three-day period before processing that request. This is considered a sufficient period for an applicant to file an excluded design application after having filed their request to amend the initial application under s 28 to exclude those designs, and should render unnecessary the previous widespread, and non-compliant, practice of filing the excluded design application prior to making the request to amend the initial application.