Applications by eligible persons following revocation by Commissioner
35 Applications by eligible persons following revocation by Commissioner
If the Commissioner:
revokes a patent under section 137; and
is satisfied, on the balance of probabilities:
on application made by one or more persons in accordance with the regulations, that the persons are eligible persons in relation to the invention concerned, so far as so claimed in any claim of the revoked patent (the original claim) and that the former patentee is not such an eligible person; or
on application made by one or more persons in accordance with the regulations, that the persons and the former patentee are eligible persons in relation to the invention concerned, so far as is claimed in any claim of the revoked patent (the original claim);
the Commissioner may declare in writing that the eligible persons are such eligible persons.
If a complete application is made under section 29 by one or more of the declared persons, the Commissioner may grant a patent for the invention, so far as so claimed, to those declared persons jointly.
If the Commissioner grants a patent under subsection (1A), the claims of that patent have the same priority date as that of the original claim as referred to in subsection (1).
The Commissioner must not make a declaration without first giving the former patentee a reasonable opportunity to be heard.
An appeal lies to the Federal Court against a decision of the Commissioner making, or refusing to make, a declaration.
This provision refers to the regulations (the regulations
). Made under this Act:
- Patents Regulations 1991 · under s 228
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