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2.24.3.1 Lapsing Under Section 142

Date Published

An application will lapse under sec 142 as follows:

  • A provisional application will lapse at the end of the prescribed period.  Usually this is 12 months after its filing date, or if the prescribed period is extended, at the end of the extended period.

  • A complete application for a standard patent will lapse where any one of the following apply:

  • the applicant has not requested examination within 5 years of filing of the complete application.
  • the Commissioner has directed the applicant to request examination, and the applicant has not requested examination within the prescribed period.  
  • the applicant has failed to pay a continuation fee within the prescribed period. The prescribed period is the period ending at the last moment of the anniversary of a date which would be the date of the patent if a patent were granted on the application. For a divisional application, the date of the patent granted on such an application is the date of the patent of the parent application.
  • the patent request and complete specification are not accepted within the prescribed time. The prescribed time for acceptance is outlined in 2.15.6 Time for Acceptance.
  • if the application is a PCT application, under prescribed circumstances.
  • Where, under sec 107, the Commissioner has directed the applicant to amend a standard application and the applicant has not complied with the direction within the time specified by the Commissioner, then the application will lapse.

An application that has lapsed may be restored if the relevant time is extended under sec 223. Under the provisions of sec 223, an extension of time:

  • must be allowed by the Commissioner where, because of an error or omission by Office staff, a relevant act has not been done within a prescribed time; or

  • may be allowed by the Commissioner where, either because of an error or omission by, or on behalf of, the person concerned, or due to circumstances beyond the control of the person concerned, a relevant act has not been done within a prescribed time.

The meaning of 'relevant act' is given in sec 223(11). Note that this is extremely broad, although it excludes certain actions prescribed in reg 22.11(4).

Examiners should forward any case on which action under sec 223 may be required, or upon which there is an unactioned application under sec 223, to the supervising examiner.  The supervising examiner will then refer the matter to Patent Oppositions.

Further information is provided in 3.11 Extensions of Time and Restoration of the Right of Priority.

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