Welcome to the new version of the Patents Manual. Please note there are changes to the numbering and sequence of the chapters and pages in the manual. You are encouraged to take the time to explore and familiarise yourself with this new structure. Subsection 223(2A) - Despite Due Care

Date Published

Section 223(2A) is as follows:

(2A) If:

(a) a relevant act that is required to be done within a certain time is not done within that time; and

(b) the Commissioner is satisfied, on the balance of probabilities, that the person concerned took due care, as required in the circumstances, to ensure the doing of an act within that time;

the Commissioner must, on application made by the person concerned in accordance with the regulations and within the prescribed period, extend the time for doing the act.

Under section 223(2B), 223(3A) and reg 22.11(1D):

  • the time for doing a relevant act can only be extended under section 223(2A) after the time period has expired;
  • the request under section 223(2A) must be filed within two months after the circumstances that prevented the person from doing the relevant act within the time required, ceases to exist; and
  • the maximum extension available under section 223(2A) is 12 months after the end of the time within which the act is required to be done.

The fee for an extension of time under section 223(2A) can be found at Schedule 7, item 228.

Unlike section 223(2), once grounds under section 223(2A) have been established, there is no discretionary power to be exercised.

Although the fees are the same, section 223(2A) is of narrower scope than the provisions of section 223(2)(a), and will only be applicable in limited circumstances.  Extensions of time under section 223(2A) would only arise where the person concerned had appropriate systems in place and did everything that could reasonably be expected to ensure the relevant act was done and despite that, a relevant act was not done in time.  

A reasonable enquiry is whether the systems or mechanisms put in place were appropriate to ensure the relevant act was performed in time.  If the person concerned did not have adequate systems in place or had not done everything reasonably possible to ensure the relevant act was done in time, an extension under section 223(2A) would not be appropriate.

Amended Reasons

Amended Reason Date Amended
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