Patent Drawings in Australia: 8 Critical Filing Rules

Almost every checklist for patent drawings in Australia cites Schedule 3 of the Patents Regulations 1991. For anything you file today, that citation is dead. Schedule 3 stopped governing new applications on 24 February 2019, and since 1 July 2022 the operative instrument has been the Formalities Requirements for Patent Documents Determination 2022. IP Australia’s own manual still points at “schedule 3, item 11” on its colour page, which tells you how easily this slips past. The geometry barely changed. What changed is the instrument you cite — and, far more usefully, Australia applies a substantial compliance test the USPTO does not.

Which instrument governs patent drawings in Australia

Australian substantive patent law is the Patents Act 1990 and the Patents Regulations 1991. The formal requirements for your sheets, however, no longer sit in the Regulations at all. They were lifted out into a determination made under section 229(1) of the Act, so that IP Australia can revise presentation rules without amending the Regulations — the same drafting move the EPO made when it deleted Rule 46 EPC.

Which version binds you depends entirely on your filing date. IP Australia’s Patent Manual of Practice and Procedure at 5.3.2 sets out the three regimes:

• Filed before 24 February 2019: the requirements are those in Schedule 3 of the Patents Regulations
• Filed 24 February 2019 to 30 June 2022: the Formalities Determination 2019
• Filed on or after 1 July 2022: the Formalities Determination 2022

The determination is made for the purposes of paragraphs 29(4A)(d) and (4B)(c) of the Act and subregulations 3.2C(3) and 22.16(2), and it replaced the 2019 determination from 1 July 2022. If you are prosecuting a case filed in 2017 and amending its figures now, Schedule 3 still governs that case. For everything else, citing Schedule 3 in a response to a formalities objection is citing a repealed provision.

This is not a trivial pedantry. It is the same failure mode that leaves firms marketing “Rule 46 EPC-compliant” figures three years after Rule 46 ceased to exist. Check the instrument before you check the margins.

Sheet geometry: A4, the useable surface and the frame ban

The numbers themselves are the familiar PCT-derived set, which is good news if your drafter already works to international standard. Sheets carrying drawings, graphics or photographs must be A4 (21.0 cm × 29.7 cm), with minimum margins of:

• Top: 2.5 cm
• Left: 2.5 cm
• Right: 1.5 cm
• Bottom: 1 cm

The figures must sit entirely inside those margins and inside an area measuring 26.2 cm × 17.0 cm — the useable surface. And there is a hard geometric prohibition worth putting in your CAD template: the sheet must not contain a frame around the drawings or around the useable surface. Border lines and title blocks are the single most common avoidable objection, because they are a default in most drafting software.

Compare the United States. 37 CFR 1.84(f) permits either 21.0 cm × 29.7 cm (A4) or 21.6 cm × 27.9 cm (letter), and 37 CFR 1.84(g) sets exactly the same 2.5/2.5/1.5/1.0 margins and the same 17.0 cm × 26.2 cm sight. So a sheet built to Australian geometry is already a compliant US sheet, with one caveat: the USPTO permits a thin line marking the sight, whereas IP Australia bans the frame outright. Build without the frame and both offices are satisfied. Our guide to USPTO drawing margins works through the US tolerances.

Drawing sheets are also numbered on their own sequence. Each sheet carries two Arabic numerals separated by an oblique stroke — 2/10 — where the first is the consecutive sheet number and the second is the total number of drawing sheets. Figures cannot appear in the patent request, the description or the claims; drawings live only on drawing sheets.

Substantial compliance is the Australian standard

This is the rule that genuinely changes how you should budget a set of Australian figures, and it has no USPTO equivalent. IP Australia’s manual states the position flatly: “Strict compliance with the formalities requirements for specifications is not required. There is no need to raise an objection if the documents substantially comply.”

Read that against US practice. A USPTO draftsperson reviews drawings against 37 CFR 1.84 item by item and issues a notice of non-compliant drawings for deviations an Australian examiner is instructed to let through. The practical consequence is that a figure set which is geometrically sound but cosmetically imperfect — slightly light line weight, an inconsistent numeral font, a legend one word longer than ideal — is far more likely to survive untouched in Canberra than in Alexandria.

Do not over-read it. Substantial compliance is a discretion exercised by the examiner, not a right you can assert, and it does nothing for the defects that go to disclosure rather than form. A figure that is unclear, mislabelled or inconsistent with the description is a section 40 problem about whether the specification discloses the invention clearly enough and completely enough, and no amount of formalities latitude saves it.

The sensible strategy is therefore to build to the stricter standard and bank the Australian tolerance as insurance. Draw once to USPTO specification, file everywhere, and let substantial compliance absorb the drift rather than designing for it.

Colour and photographs: four jurisdictions, four answers

Colour is where the divergence becomes expensive, and where the stale Schedule 3 citation does real damage. Schedule 3, item 11 required drawings “executed in durable, black, sufficiently dense and dark, uniformly thick and well-defined, lines and strokes without colorings”. Under the current determination, graphics and photographs are permitted where drawings cannot represent the information, and colour is permitted where it is indispensable to understanding the invention.

There is no petition and no surcharge. The test is necessity, assessed as a formalities matter, and IP Australia’s colour drawings and photographs guidance adds that a full description of an invention rarely requires colour, that the office expects black and white wherever possible, and that where colour matters to the invention a standard colour reference chart such as the Royal Horticultural Society chart may serve instead. That last suggestion is a genuinely useful fallback for plant and pigment cases.

Now line up the four regimes that one figure set has to satisfy:

• Australia: colour permitted where indispensable to understanding the invention. No petition, no fee.
• USPTO: under 37 CFR 1.84(a)(2), colour is allowed outright in design applications; in a utility application it needs a granted petition, the fee under 37 CFR 1.17(h), and a specified paragraph inserted at the head of the brief description of the drawings. 37 CFR 1.84(b)(1) treats photographs as “not ordinarily permitted” and admits them only as the only practicable medium.
• EPO: since 1 October 2025, electronically filed drawings are accepted in colour or greyscale, provided they are contrast-rich and clear at 300 dpi. Description, claims and abstract stay black and white.
• PCT: Rule 11.13(a) still requires durable, black, sufficiently dense lines “without colorings”. The international phase did not follow the EPO.

Because Australia is most often reached through the PCT, that last line usually decides the question. If your international application went in monochrome, your Australian national-phase figures are monochrome, whatever the determination would have allowed on a direct filing. We cover the European half of this in EPO colour patent drawings and the international baseline in our PCT drawing requirements explainer.

Rule 46 EPC is no longer the European answer

If a template tells you to make your figures “Rule 46 EPC compliant”, that template predates February 2023. Rule 46 EPC, together with Rule 49(3) to (12) EPC, was deleted with effect from 1 February 2023 by a decision of the Administrative Council at its 172nd session as part of the digital-transformation package. Rules 49(2), 50, 57(i) and 82(2) EPC were adapted to match.

The form requirements for drawings moved into a Decision of the President of the EPO published in the Official Journal, exactly so the office could change presentation rules without touching the Implementing Regulations. The colour change of 1 October 2025 was delivered through that mechanism rather than by amending a rule, which is precisely the point of the restructuring.

Two practical cautions follow. First, do not trust third-party consolidations of the EPC — several still render Rule 46 as live law. The EPO’s own legal texts show it as deleted. Second, for a Euro-PCT case the EPO will work from colour only where colour drawings are on PATENTSCOPE and the international publication reflects them, so the PCT monochrome rule reaches forward into the European phase as well. Our EPO drawing requirements guide tracks the current position.

Text in figures, reference characters and legends

Australia takes the international line on lettering: a drawing must not contain text except for words that are essential — the determination uses “indispensable” — for the figure to be understood. Permitted examples are the conventional ones: a single word or two such as “water”, “steam” or “section on AB”, and the keying words a flowchart or block diagram genuinely cannot do without.

That matters more than it looks, because every word inside a figure is a word that cannot be machine-translated in a later national filing and has to be redrawn instead. The discipline that saves money is to carry meaning in reference numerals and leave the words to the description.

On the numerals themselves, build to the international floor. 37 CFR 1.84(p)(3) and PCT Rule 11.13(j) both require numbers, letters and reference characters to measure at least 0.32 cm (1/8 inch) in height, simple and legible, and not to be used with brackets, inverted commas or enclosing outlines. Reference characters must also be consistent: a numeral used in the description must appear in the drawings and vice versa. Our guide to patent drawing reference numerals sets out the cross-checking routine.

One more Australian specific: because the formalities instrument changed twice in three years, a long-running family can contain sheets built to three different standards. When you file a divisional or amend figures on an older case, match the regime that applies to that application’s filing date rather than today’s.

Australia has no design patent, and that changes your figures

This is the error that most reliably catches US-trained filers. Australia does not have a design patent. Appearance is protected by a registered design under the Designs Act 2003, a separate right administered by IP Australia on a register of its own. There is no Australian counterpart to 37 CFR 1.152, the US rule that governs design patent drawings and requires a sufficient number of views to constitute a complete disclosure while forbidding photographs and drawings in the same application.

Two consequences follow for your artwork. First, the formalities instrument discussed above does not apply to design representations at all — those are governed by the separate Designs (Formal Requirements for Designs Documents) Instrument 2022. Second, the substantive test differs: a registered design is assessed on the visual features it discloses, so representations must clearly show those features, and the surface-shading and broken-line conventions a US design practitioner relies on do not carry the same statutory weight.

The procedural shape differs too. Australian design registration is a formalities check; substantive examination for newness and distinctiveness happens only when examination is requested, and a certificate of examination is what makes the right enforceable. Amendments in force from 10 March 2022 added a grace period, a prior use defence and relief for innocent infringement. If you are converting a US design portfolio, plan the representations against the Designs Act, not against your 1.152 templates. Our comparison of utility versus design patent drawings explains what does and does not transfer.

Routes, deadlines and eight checks before you file

Australia is not an EPC contracting state, so there is no validating a European patent into Australia and the Unified Patent Court has no reach there. You file nationally or you enter the PCT national phase, and the figures travel with whichever route you pick.

• PCT national phase: 31 months from earliest priority, not the 30 months most of your docket runs on. Late entry is discretionary and should never be planned around.
• Examination is not automatic. Request it within 2 months of an IP Australia direction, or within 5 years of the international filing date, whichever comes first, or the application lapses. After the first report you have 12 months to put the case in order for acceptance.
• The innovation patent is gone. No innovation patent can have a filing date on or after 26 August 2021, and a PCT application cannot enter the national phase as one. The standard patent is the only route.
• Opposition is pre-grant. Acceptance is advertised and third parties have 3 months to oppose.
• Enforcement is federal. The Federal Court of Australia hears infringement and validity together, with validity usually run as a cross-claim; appeals go to the Full Federal Court and then to the High Court by special leave.

Before the sheets leave your office, run these eight checks:

1. Confirm the filing date and therefore which formalities instrument applies.
2. A4 sheets, margins 2.5 cm top and left, 1.5 cm right, 1 cm bottom.
3. Everything inside the 26.2 cm × 17.0 cm useable surface.
4. No frame around the drawings or the useable surface — delete the CAD border.
5. Monochrome unless colour is indispensable; if the case came through the PCT, monochrome regardless.
6. No text beyond indispensable words; reference characters at least 0.32 cm high.
7. Drawing sheets numbered on their own sequence as 2/10, and no figures in the request, description or claims.
8. Every reference numeral in the description appears in the drawings, and the reverse.

For the filing mechanics either side of the drawings, see our walkthrough of the PCT national phase in Australia, and the same drawing analysis for a comparable non-EPC jurisdiction in patent drawings in Canada.

PerspireIP prepares figure sets to the Australian determination, 37 CFR 1.84 and the current EPO standard from one master drawing, so a single set clears IP Australia, the USPTO and the European phase without redrawing. See our patent drawing services, our Melbourne patent drawing team and Sydney patent drawing team, or the Australia practice page. If you have a deadline on an Australian national-phase entry, talk to us before you redraw anything.

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