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3.5 Equal priority
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3.5.1 Two convention claims
Two applications may claim convention priority based on convention country applications that were filed in different convention countries on the same day. This scenario is analogous to that where two applications do not claim convention priority and are filed in New Zealand on the same day. In both scenarios the applications concerned have equal priority.
Where two applications claim convention priority based on convention country applications that were filed on the same day, the procedure is the same as that outlined in section 34(2) of the Act. Both applications are eligible for registration under the Act, where no other grounds for refusal exists, and the examiner will not raise either application as a citation against the other. Rather, the examiner will notify each applicant of the other application.
The applicants will receive this notification either within a Compliance Report or together with a Notice of Acceptance, as applicable.
3.5.2 Convention claim and non-convention claim
Occasionally it may transpire that one application claims convention priority based on a convention country application, a second application does not claim convention priority, and the priority dates pertaining to both applications are the same. This scenario is analogous to that where two applications do not claim convention priority and are filed in New Zealand on the same day. In both scenarios the applications concerned have equal priority. For example:
• Application A was filed in New Zealand on 12 August 2002.
• Application B was filed in New Zealand on 20 December 2002, claiming priority from a convention country application that was filed on 12 August 2002.
Where an application claiming convention priority and an application that does not claim convention priority have equal priority, the procedure is the same as that outlined in section 34(2) of the Act. Both applications are eligible for registration under the Act, where no other grounds for refusal exists, and the examiner will not raise either application as a citation against the other. Rather, the examiner will notify each applicant of the other application.
The applicants will receive this notification either within a Compliance Report or together with a Notice of Acceptance, as applicable.
3.5.3 Convention claim and accepted application
An applicant will occasionally file an application that has equal priority, by virtue of its claim to convention priority, with another application that has already been accepted. This may occur in one of the following two ways:
- Application A does not claim convention priority, and is accepted. Application B does claim convention priority, and is subsequently examined. The convention priority date pertaining to application B is the same as application A’s New Zealand filing date.
- Application A claims convention priority, and is accepted. Application B also claims convention priority, and is subsequently examined. The convention priority date pertaining to the application B is the same as the convention priority date pertaining to application A.
Where an application is discovered to have equal priority, by virtue of its claim to convention priority, with another application that has already been accepted, the applications are both eligible for registration under the Act, where no other grounds for refusal exist. The examiner will not raise the accepted application as a citation against the other, nor revoke acceptance of the accepted application, but will notify each applicant of the other application.
The applicant in respect of the accepted application will be sent this notification in a letter, while the other applicant will receive the notification either within a Compliance Report or together with a Notice of Acceptance (as applicable).
