PCT application national phase Entry in Australia has a deadline of 31 months from the priority date. Restoration of this deadline is possible if the failure to meet it is due to errors, omissions, or circumstances beyond the applicant’s control. There is no fixed term for the restoration, but a request for late entry should be made promptly after the 31-month deadline, supported by a statutory declaration or affidavit explaining the reasons for the delay.
Filing requirements in Australia
The official language of the patent application must be English. If the PCT application is in another language, a certified English translation must be provided within 31 months from the priority date.
To secure a patent in Australia through the PCT national phase, the application must include at least the international application or publication number. Additional information about the applicant and inventor will be obtained from WIPO if the application has been published. A certified copy of the Priority Document may be requested by the Australian Patent Office or a third party, and a translated version is necessary only if required to assess the application’s validity.
Currently, Australian legislation does not mandate filing a Power of Attorney when entering the national phase. An Assignment Deed from the inventor to the applicant is only necessary if requested by the Australian Patent Office.
The examination process for a PCT national phase application in Australia involves both formal and substantive examinations. Substantive examination must be requested within five years from the international filing date or within two months of receiving an invitation to request an examination. Accelerated examination under PPH is possible.
The novelty grace period in Australia is 12 months from public disclosure with the consent of the patentee or nominated person. Various circumstances, such as exhibitions, learned society disclosure, or public work, contribute to this grace period. Additionally, if information becomes public without the consent of the patentee, it does not affect the novelty of the invention.
Grant fees in Australia should be paid within three months of receiving the Notice of Allowance. Patents are valid for 20 years from the international filing date, with annual fees due from the fifth year and payable before the fourth anniversary of the filing date. Late payments are allowed within a six-month grace period with corresponding surcharges.
A smooth patent registration process in Australia typically takes 4-5 years. Utility model protection is not available under Australian legislation, but before August 25, 2021, applicants could obtain innovation patent protection instead. Existing innovation patents filed on or before August 25, 2021, remain in force until their expiration (8 years).
For foreign patent applicants, it is advisable to engage a registered Australian and New Zealand patent attorney for patent prosecution in Australia.
The list of Australia IP Firm can be found here.