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ARTICLE · 20 MAY 2016

Say it isn't so: Incorporations by reference and priority claims

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The disclosure of all parent applications should be included in any subsequent divisional application to ensure priority.

AustraliaIntellectual Property
Andrew Lowe
Andrew Lowe
Russell Davies
Russell Davies
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Multigate Medical Devices Pty Ltd v B Braun Melsungen AG [2016] FCAFC 21 (3 March 2016)

Executive Summary

  • For priority claim purposes, the invention in a divisional application need only be disclosed, rather than be described, in the priority application or parent application(s).
  • A reference to figures of an earlier filed application in a divisional application was sufficient to incorporate the description of those figures into the divisional application and thus provide support for the priority claim.
  • Applicants should ensure that the disclosure in any divisional application includes the disclosure of any parent or ancestor applications by using an explicit incorporation by reference.

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