Fees associated with Australian PCT national phase entry as well as other patent fees are available in the fee calculator.
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Deadline for PCT national phase entry in Australia
The time limit for entering the Australian national phase of a PCT application is 31 months from the priority date. The restoration of this term is possible if the failure to meet the deadline was due to error, omission or circumstances beyond the control of the person concerned. There is no fixed term for the PCT national phase entry deadline restoration, but a request for late entry should be made as soon as possible after the 31-month deadline date and it should be accompanied by supporting evidence in the form of a statutory declaration or affidavit. The declaration or affidavit should provide a full explanation of the events which led to the failure to meet the prescribed time limits.
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Filing requirements in Australia
The official language of the Australian patent application is English. In case the PCT application is filed in another language, the certified English translation must be provided within the term of 31 months from the date of priority.
To obtain a patent in Australia, a PCT national phase entry application must contain at least the international application or publication number. An applicant, an inventor and other information will be obtained from WIPO if the application has been published.
A certified copy of the Priority Document should be provided on request of the Australian Patent Office or a third party. A verified translation of the priority document is only required if it is necessary to determine the validity of the application.
Currently, the Australian legislation does not require filing a Power of Attorney when entering Australian PCT national phase.
An Assignment Deed from the inventor to the applicant is only required if requested by the Australian Patent Office.
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Examination of a PCT national phase patent application in Australia
Patent applications in Australia undergo formal and substantive examinations. The substantive examination should be requested within five years from the international filing date or within two months from issuance of an invitation to request examination, whichever comes earlier. It is possible to request accelerated examination under PPH.
Novelty grace period in Australia comprises 12 months from disclosure made publicly available by or with the consent of the nominated person or patentee, or the predecessor in title of the nominated person or patentee, if:
- the invention was shown, used or published at a recognised exhibition;
- the information as to invention was read before learned society or published by or on behalf of learned society;
- the information has been made publicly available because the invention was worked in public;
- the working of the invention was for the purposes of a reasonable trial of the invention.
Furthermore, if any information became publicly available without the consent of the nominated person or patentee, through any publication or use of the invention by another person who derived the information from the nominated person or patentee or from the predecessor in title of the nominated person or patentee, it does not disprove the novelty of the invention in Australia.
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Grant, validity term and maintenance fees
Official fees for granting should be paid within 3 months from the date when Notice of Allowance was received. Patents in Australia are valid for 20 years from the international filing date. Annual fees are due each year starting from the 5th one and should be paid before the expiry of the 4th anniversary of the international filing date. Late payment is possible within a six-month grace period by paying a corresponding surcharge for each lapsed month or part thereof.
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Duration of registration procedure
In the case of a smooth patent registration process in Australia, the whole procedure takes approximately 4-5 years.
Utility model protection is not available under Australian legislation.
However, before August 25, 2021 the applicants were able to obtain an innovation patent protection instead of Utility Model in Australia. Existing innovation patents that were filed on or before 25 August 2021 will continue in force until their expiry (8 years).
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Representation by a patent attorney
For foreign patent applicants, it is recommended to perform patent prosecution in Australia using an agent - a registered Australian and New Zealand patent attorney.
Online Search Database for Australian Patents Search.
Brief summary is based on the information provided by PIPERS on 23.02.2024
Please contact us if the above information is not in conformity with Australian IP Laws