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Date Published

Note: The information in this part only applies to:

  • standard patent applications with an examination request filed before 15 April 2013.  
  • innovation patents with an examination request filed before 15 April 2013.
  • innovation patents where the Commissioner decided before 15 April 2013 to examine the patent.

For all other standard patent applications/innovation patents, see Cross-References.

Where a claim has a reference to matter contained in another specification (Australian or otherwise) or other document that may be amended over time (such as a GenBank entry or a webpage), that claim will not be clear unless the actual matter in question has been incorporated into the specification containing the claim. This is because the wording of any such reference may be subject to change by amendment at any time, without the constraints of sec 102 applying.

Note: Where a claim has a cross-reference to a recognised national or international standard (for example AS, ASTM, IEEE), such reference does not give rise to a lack of clarity (see also PCT International Search and Preliminary Examination Guidelines [Part II] Chapter 4, paragraph 4.24).

Special considerations apply to applications for patents of addition (see Examination Practice, ‘Special Considerations’).

In the exceedingly rare situation where the applicant wishes to maintain a cross-reference to another specification (and the application is not for a patent of addition) or other document, relevant considerations are:

a. is the content of the cross-reference permanently fixed? If not, the scope of the claim will be unclear for being indeterminate over time.

b. is the cross-reference readily available in Australia? If not, the scope of the claim will be unclear due to an inability to ascertain the content of the cross-reference.

Note:  Where claims define an invention by way of cross-reference to another document, and this definition leads to an inconsistency between the subject matter of the claims and what the specification as a whole describes as the invention, the claims will also lack fair basis.

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