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2.12.1.4A Priority Date Issues Relating to Amended Claims

Date Published

Note: The information in this part only applies to:

  • requests to amend filed, or deemed under reg 10.6A to be filed, on or after 15 April 2013, for standard patent applications where a request for examination was not filed before 15 April 2013, and standard patents granted on such applications.
  • requests to amend filed on or after 15 April 2013 for innovation patent applications, and innovation patents where a request for examination was not filed before 15 April 2013, or the Commissioner had not decided before 15 April 2013 to examine the patent.

For all other requests to amend, see 2.12.1.4 Priority Date Issues Relating to Amended Claims.

Section 114 provides a general mechanism for determining the priority date where a complete specification has been amended and can be invoked prior to acceptance.

When a previously allowed amendment results in a specification claiming an invention that:

  • prior to the amendment was not disclosed in a sufficiently clear enough and complete enough manner for the invention to be performed by the person skilled in the art; but
  • after the amendment, was sufficiently disclosed;

the priority date of the claim is the date that the amendment was filed (reg 3.14).

The most common reason for invoking sec 114 is in relation to national phase applications, where the specification is deemed amended under the circumstances of sec 29A and reg 3.5AC.  (Note that the provisions of sec 29A and reg 3.5AC only apply to PCT applications filed on or after 15 April 2013).

Note: Section 114 does not apply where an amendment is allowed under sec 102(3).

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