20.8. Convention priority: Relevance of the basic application to examination

In an examination there is no need to inspect the basic application unless:

• there is a relevant citation where determining the priority date is critical; or
• there is reason to believe that the priority claim may be invalid (e.g. references to the basic application do not match the details of the Australian design).
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If we do not already have one on file, the examiner can request a certified copy of the basic application in order to confirm the validity of the priority claim. Note that this request is separate from, and happens before, raising grounds for revocation.

Generally, the validity of a convention priority claim is relevant to the examination only if a design that is identical or substantially similar in overall impression was published in the period between the claimed priority date and the filing date.

If the priority date is in question, we need to determine the validity of the priority claim before raising any grounds for revocation. Therefore, it is important to give the owner a chance to supply the basic documentation before we prepare an adverse report.

The examiner cannot object to the details of the convention priority claim by itself. The only basis for raising this issue is in the context of an objection of lack of newness or distinctiveness that depends on whether the claim of convention priority is valid.

However, if the owner fails to provide the basic application and/or satisfactory supporting documents within 2 months, we will amend the Register to make the new priority date the Australian lodgement date. We may then issue an adverse report raising grounds for revocation if there is a relevant citation with a publication or priority date that is earlier than the new priority date of the design under examination.