Note: Where there is conflicting evidence regarding the date of filing a document, the matter should be referred for determination to the Assistant General Manager (OEP). This may occur, for example, where a party has a receipt for filing a document with the Office, but the Office has no document on file and no record of receipt.

Filing Dates – Patent Applications Other Than PCT Applications

An application is made by filing a patent request accompanied by a complete specification. Each application is given a filing date in accordance with reg 3.5 and this date is subsequently recorded in PAMS. The filing date will be the date of filing of:

a. information in English, which either explicitly or implicitly indicates that what is filed is intended to be a complete specification for a patent;

b. the name of the applicant and/or an address; and

c. information which, on the face of it, appears to be a description.

For the purposes of c., a description:

does not have to be in English; and
may be a drawing, graphic or photograph; and
may be a reference, in English, to a previously filed application, which may or may not be in English.

Where any of a. to c. is not complied with, the Commissioner will notify the applicant and allow them two months in which to comply or make observations. If the applicant does not respond within the time limit, then the application will be treated as not having been filed. If the applicant responds, and as a consequence the application is now considered to satisfy requirements a. to c., the filing date will be the date of the applicant's response. If, as a consequence of observations made in a response, the application as originally filed is considered to meet requirements a. to c., the filing date will be the original filing date.

Missing Parts

Where the application complies with the requirements above, but it is noticed that parts of the application appear to be missing, the Commissioner will notify the applicant and allow them two months in which to file the missing parts. Note, however, that “notice” in reg 3.5A means in the normal process of according a filing date to the application, and does not encompass the situation where the Commissioner is made aware of a missing part by having an applicant draw the missing part to the Commissioner’s attention (see Glad Products Company’s Application [2006] APO 26).

If, after having been notified of missing parts, the applicant subsequently files the missing parts, then the filing date will be the date that those parts were filed. However, if the applicant files the missing parts and then subsequently withdraws them within one month of the Commissioner notifying the applicant of the later filing date, that date will be removed and the original filing date will stand.

Where parts of an application appear to be missing and the applicant claims priority from an earlier basic application or associated provisional application, if the applicant files a copy of the earlier application, accompanied by a translation if necessary, within two months of being notified of the existence of the missing parts and:

the missing parts are completely contained within the earlier application;
the location of the missing parts in the earlier application is indicated; and
the original application contained an indication that the contents of the earlier application were incorporated in the application;

then the filing date will be the original filing date.

In any of the situations referred to above, if the applicant does not respond to a notification from the Commissioner, the filing date will be the original filing date. In this circumstance, the missing parts may only be incorporated into the application by amendment under sec 104, if allowable.

Filing Dates – PCT Applications

PCT Applications Filed On or After 15 April 2013

The filing date of a PCT application is determined under reg 3.5AA. In general, the filing date is the international filing date as indicated on the front page of the PCT pamphlet. In rare circumstances, the Commissioner may treat another date as the international filing date (reg 3.5AA(b)), or give an international filing date to an application where no date was given by the receiving Office (reg 3.5AA(c)).

PCT Applications Filed Before 15 April 2013

The filing date of a PCT application is determined under sec 88. In general, the filing date is the international filing date as indicated on the front page of the PCT pamphlet. In rare circumstances, the Commissioner may treat another date as the international filing date (sec 10).