Patents Act 1990

If:

a patent application has been made and, in the case of a complete application, the patent has not been granted; and

an application for a declaration by the Commissioner is made by one or more persons (the section 36 applicants) in accordance with the regulations; and

the Commissioner is satisfied on the balance of probabilities, in relation to an invention disclosed in the specification filed in relation to the application for the patent:

that the nominated person is not an eligible person, but that the section 36 applicants are eligible persons; or

that the nominated person is an eligible person, but that the section 36 applicants are also eligible persons;

The Commissioner may make a declaration under subsection (1) whether or not the patent application lapses or is withdrawn.

The Commissioner must not make a declaration under subsection (1) without first giving the nominated person a reasonable opportunity to be heard.

The Commissioner may, after making a declaration under subsection (1), make any determination the Commissioner thinks fit for enabling the application to proceed in the name of one or more of the declared persons.

If a complete application is made under section 29 by one or more of the declared persons, the priority date of the claims of a patent for the invention granted to the person, or persons, as the case may be, must be determined under the regulations.

An appeal lies to the Federal Court against a decision by the Commissioner under this section.