2.3.4 Reckoning of Time

The Act specifies time periods for many actions required by applicants.  In some circumstances, the action can be done after the last day and still be regarded as done in time. The specific provisions governing the reckoning of time are sec 222A of the Patents Act and sec 36 of the Acts Interpretation Act 1901.

The general principle is that if an action is to be done on or by a day on which the Office is not open for business, then the action can be done on the next day that the Office is open for business. This applies to weekends, public holidays and the Christmas shutdown.

The Director General or other prescribed person may declare that the Office is not open for business on a particular day.  Under reg 22.10AB(2), the Director General and Deputy Director General are both able to declare such days autonomously.  Other Senior Executive Service (SES) employees of IP Australia may also declare such days, however only with the agreement of the Director General, Deputy Director General or another SES employee. A declaration can be made before or after the particular day, and is published in the Official Journal and on the News and Official Notices pages of the IP Australia website.

This must be distinguished from an extension of time, which generally requires a request and the payment of a fee.

Note: See 2.15.6 Time for Acceptance for considerations applying to the action of acceptance by the Commissioner.

Situations Where Section 222A Not Applicable

Section 222A of the Act does not apply to the following actions:

1. an act in relation to proceedings in a court or a tribunal; and

2. an act done under Chapter 20 (Individual Patent Attorneys) of the Regulations.

However, the Acts Interpretation Act 1901 still applies to these matters.

Note: Section 222A does not apply to an act done under the PCT.  Note, however, that Rule 80.5(iii) does apply and has a similar effect where public holidays are concerned.