12 April 2008

Missed your National Phase Deadline?

Most proceedings under our Patents Act are extendible after the deadline has passed.

The failure to meet the national phase deadline must be either the result of:
  • An "error or omission" by the agent or the applicant/patentee.
  • Circumstances beyond the control of the applicant/patentee.

Some examples of errors or omissions presented in extension of time applications are:

  • Failure to make a diary entry.
  • A date error in connection with the deadline.
  • A misunderstanding of instructions.
  • Failure to seek instructions from applicant/patentee.
  • Failure by applicant/patentee to provide instructions.

The circumstance provision is essentially a "force majeure" provision. Delays by post and courier constitute the major source of extensions under this category. Anticipation of a Court judgement has been held to be a circumstance beyond a person's control. However, lack of funds is not considered to be a circumstance beyond a person's control.

Drop me an email if you've missed a deadline. Just remember, you need to apply as soon as you realize the deadline is missed. An undue delay could be grounds for a refusal. You can file the evidence in support of the application later on.

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