Patents Act 1990

The Commissioner may take one or more of the actions listed in subsection (2) in relation to a person if:

the Commissioner summons the person to appear as a witness under paragraph 210(1)(a) or requires the person to produce a document or article under paragraph 210(1)(c); and

the person refuses or fails to comply with the summons or requirement; and

the Commissioner is satisfied, on the balance of probabilities, that it is appropriate in the circumstances to take the action.

The actions the Commissioner may take are:

if the person is an applicant for a patent—a refusal to grant the patent (see subsection 61(1); and

the drawing of an inference unfavourable to the person’s interest in proceedings before the Commissioner; and

actions of a kind that are prescribed by the regulations.

In deciding whether it is appropriate to take the action, the Commissioner must consider the following:

whether the person has a reasonable excuse for refusing or failing to comply with the summons or requirement;

whether the person has been offered payment of reasonable expenses associated with complying with the summons or requirement;

any other matter the Commissioner considers to be relevant.