Patents Act 1990

If an innovation patent has been opposed under section 101M, the Commissioner must decide the case in accordance with the regulations.

The Commissioner must give the opponent and the patentee a reasonable opportunity to be heard before deciding the case.

The Commissioner may, in deciding whether to revoke the patent, take into account any ground on which the grant of an innovation patent may be opposed, whether relied upon by the opponent or not.

Subject to subsection (6), if the Commissioner is satisfied, on the balance of probabilities, that a ground exists for the revocation of an innovation patent, the Commissioner may revoke the patent in writing either wholly or so far as it relates to a particular claim.

If the Commissioner revokes the patent:

the Commissioner must notify the patentee and the opponent of the revocation; and

register the revocation of the patent.

The Commissioner must not revoke a patent under this section unless the Commissioner has, where appropriate, given the patentee a reasonable opportunity to amend the relevant specification for the purpose of removing any ground for revocation and the patentee has failed to do so.

The patentee, and any opponent, may appeal to the Federal Court against a decision of the Commissioner under this section.