The deadline for entering the Australian National Phase of a PCT Application is 31 months from the earliest priority date.
In the event that the above deadline is missed, Australia does have an extension of time provision as they relate to an “error or omission” by the applicant and/or the agent, or indeed “circumstances beyond the control” of the applicant. Accordingly, if the circumstances that led the applicant/agent to miss the National Phase Entry deadline meet these criteria, it is possible to belatedly enter the Australian National Phase and concurrently file a request for an extension of time (RET). The RET would need to be supported by a Declaration explaining the circumstances associated with the failure to timely enter the Australian National Phase. However, the Declaration can be filed after filing the RET and typically the Australian Patent Office will require the Declaration within two (2) months.
To enter the National Phase in Australia, the following documents and particulars are required:
A Power of Attorney is not required in Australia. Also, a certified copy of any priority application will not be required for filing.
After entering the National Phase in Australia, examination must be requested within 5 years from the filing date (i.e., the international filing date). However, in practice, the Australian Patent Office will set an earlier deadline by issuing a Direction to Request Examination. Once the Direction issues, examination must be requested within 2 months. From our experience, the Direction will typically issue about 4 year from the filing date due to delays at the Australian Patent Office.
After requesting examination, it will typically be 12-18 months before a first examination report issues. The acceptance (i.e., allowance) deadline will be 12 months from the date of the first examination report.
Following successful examination, the application will proceed to acceptance and third parties are provided with an opportunity to oppose the grant of a patent within 3 months of the advertisement of acceptance. If there is no opposition, a patent will issue shortly thereafter.