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. Advertising an Extension - Subsection 223(4)

Date Published

Advertisement and opposition

Under section 223(4), it is mandatory to advertise an application made under section 223(2) or (2A) for an extension of time for more than 3 months, unless the Commissioner is satisfied that the application would not be granted even in the absence of opposition (section 223(6A)).  This provision saves third parties from going to the expense of filing an opposition to the grant of an application that the Commissioner does not intend to grant.

Where an application under section 223 is advertised, under section 223(6) a person may oppose the granting of an extension under section 223(2) or (2A).  For more information on opposing an amendment request under section 223 see 7.2.5 Section 223(6) - Opposition to an Extension of Time under Subsection 223(2) or 223(2A).

Therefore, generally speaking, before directing advertisement the Commissioner will need to be satisfied that grounds for the extension have been established so that, in the absence of any opposition being filed to the extension application, the extension could be granted.  As to the degree of satisfaction needed, this will require the existence of at least "some evidence on which the Commissioner could decide to grant the extension of time" even though there is other evidence on which the application could be refused (Kimberly-Clark Corporation v Proctor & Gamble Company [1992] APO 2).

When an extension of time is granted under section 223, pursuant to reg 22.11(2), a notice of the grant will be published in the Australian Official Journal of Patents.

Amended Reasons

Amended Reason Date Amended
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