7.12.2.2 Time for Applying

Also in this Chapter:

• 7.12.2.1 Documentation Required
• 7.12.2.3 Extension of Time to Apply for an Extension of Term

Key Legislation:

Patents Act:

• s70 Applications for extension of patent  
• s71 Form and timing of an application  

Under s71(2), an application for an extension of term of a standard patent must be made during the term of the patent and within 6 months after the latest of the following dates:

• the date the patent was granted;
• the date of commencement of the first inclusion in the Australian Register of Therapeutic Goods (ARTG) of goods that contain, or consist of, any of the pharmaceutical substances referred to in s70(3);
• the date of commencement of the extension of term provisions (27 January 1999).

An application for an extension of term cannot be made before the patent is granted.

Note: The first inclusion in the ARTG refers to any inclusion, including registering export approval of a drug prior to obtaining marketing approval. (Pfizer Corp v Commissioner of Patents [2006] FCAFC 190; Merck Sharp & Dohme Corp. v Sandoz Pty Ltd [2022] FCAFC 40).