Commonwealth Consolidated Acts

PATENTS ACT 1990 - SECT 43

  (1)   Each claim of a specification must have a priority date.

  (2)   The priority date of a claim is:

  (a)   if subsection   (2A) applies to the claim--the date determined under the regulations; or

  (b)   otherwise--the date of the filing of the specification.

  (2A)   This subsection applies to a claim if:

  (a)   prescribed circumstances apply in relation to the invention defined in the claim; and

  (b)   a prescribed document discloses, or a prescribed set of prescribed documents considered together disclose, the invention in the claim in a manner that is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art.

  (2B)   A prescribed document, or a prescribed set of prescribed documents considered together, is taken to disclose the invention in a claim as mentioned in paragraph   (2A)(b) so far as such disclosure requires a description of a micro - organism, if:

  (a)   the micro - organism is deposited with a prescribed depository institution in accordance with such provisions of the Budapest Treaty as are applicable; and

  (b)   the prescribed circumstances apply.

  (3)   Where a claim defines more than one form of an invention, then, for the purposes of determining the priority date of the claim, it must be treated as if it were a separate claim for each form of the invention that is defined.

  (4)   The priority date of a claim of a specification may be different from the priority date of any other claim of the specification.

  (5)   If, at the time when a Convention application or a PCT application is made in respect of an invention:

  (a)   an application (the earlier application ) has been made for protection in respect of the invention in a Convention country; and

  (b)   the earlier application was made in the prescribed period; and

  (c)   the earlier application has been withdrawn, abandoned or refused without becoming open to public inspection; and

  (d)   the earlier application has not been used as the basis of claiming a right of priority in a Convention country under a law of that country; and

  (e)   a later application has been made by the same applicant for protection in respect of the invention in a Convention country;

the earlier application is taken, for the purposes of this Act, to have never been made.

Note:   For the purposes of paragraph   (e), the later application need not have been made in the same Convention country as the earlier application.