Mechanism to secure filing date without filing formal patent application
Under the Patent Regulations 1991 (Cth) Regulation 3.5 to obtain a filing date all that is required is
(1)(a) information in English that indicates that what is filed is intended to be an application for a patent;
(1)(b) information that allows the identity of the applicant to be established or allows the applicant to be contacted by the Patent Office;
(1)(c) information that appears to be a description (which need not be in English, Regulation (2))
Accordingly, a document less than a provisional or complete application can be used to obtain a filing date in Australia. If using this method, an amendment should be filed as soon as is practicable to cure any formality deficiencies. New matter can also be added by filing additional provisionals.
However, it should be noted that the filing date is not always the same as the priority date. According to section 43(2) of the Patents Act 1991 (Cth), the priority date of any particular claim is the date of the filing of the specification (unless provisions under the Regulations apply). However, the invention must be described in the priority document in a way that is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art (section s40(1)). Therefore, if the thing that “appeared to be a description” in the original document was not clear enough and complete enough for the invention to be performed then while a filing date was secured, a priority date was not. Thus, this method should be used with caution.
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