FOR IP PROFESSIONALS

Extension of time

You can apply for an extension of time to carry out certain tasks associated with your design application or registration.

For example, you may need more time to:

  • restore a registered design that has ceased
  • complete a design application that has lapsed because you did not pay a fee
  • apply to regain priority rights because you did not file an application within six months from the filing date in a Convention country.

How to apply for an extension of time

If you need an extension of time, you must act quickly to:

  • pay any unpaid fees that are due
  • where possible, carry out the action which was not done in time
  • pay a fee for an extension of time
  • lodge an application for the extension of time.

Your application needs to demonstrate that your failure to carry out the required action was due to either:

  • an error or omission by yourself, your employees, agent or attorney, or
  • circumstances beyond your control.

Circumstance beyond your control can include delays by post or courier, sickness or accident. They do not cover lack of funds to pay a fee or excessive workloads.

A declaration is required

In order to apply for an extension of time, your application must include one or more declarations, setting out the reasons why the fee was not paid or act not done by the required date. Declarations are written statements of fact, witnessed by an authorised person. Designs Regulations 11.26 provides requirements on declarations required by the Designs Act 2003.

A statutory declaration may be made under state law, territory legislation or the Statutory Declarations Act 1959, however a signed declaration under the regulations of the Designs Act 2003 is sufficient.

What to include in your declaration

The declarations you supply with your request must: 

  • give a full and frank disclosure of all the relevant circumstances.
  • describe the chain of events that led to the fee not being paid or act not being done in time; this may mean that you have to get declarations from a number of people who were involved and who have direct knowledge of the events.
  • explain the error or omission made, the circumstances beyond your control, or how, in spite of you taking due care, you missed the deadline.
  • explain any delays that happened between when you found out there was a problem and when you made the application for an extension of time.
  • include copies of any documents that support the explanations.

Remember:

You cannot get an extension of time if your failure to do an act was intentional.

Failing to pay a fee, or to do an act, is not itself an error or omission.

If you make an application for an extension of time for more than three months, we must advertise your application so that other people have an opportunity to oppose the extension. If this happens, we recommend that you obtain legal advice.

If no opposition is filed, the Registrar of Designs will then consider your extension request.

If your application meets the requirements of the Designs Act 2003, we will approve your extension of time. If not, we will notify you of the reason and give you an opportunity to file further material to support your request.

If the matter cannot be resolved, you can ask to be heard by the Registrar of Designs. A decision of the registrar refusing to grant an extension of time may be appealed to the Administrative Appeals Tribunal.

Seek professional advice

Applying for an extension of time can involve complex legal issues and it may be in your best interests to obtain professional advice.

Fees

When you file your application for extension of time, you will have to pay a fee.

If you are relying on an error or omission by yourself, or by your agent or attorney, the fee increases for every month of extension required.

If you are relying on circumstances beyond your control, a single fixed fee will apply irrespective of the length of the extension sought.

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Last Updated: 23/11/2013

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Patent Examiner since 2010
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