Under section 214C, a direction may require written evidence to be presented in declaratory form. (Note that reg 22.12 previously applied to written evidence filed before 24 February 2019). Reg 22.13 sets out the requirements for declarations and the manner in which they may be given to the Commissioner. Written evidence and documentary evidence must be in English, unless it is accompanied by a translation (reg 22.15). (For translations filed before or on 25 September 2019, a certificate of verification for the translation must also be provided).

In general, where a declaration is required or permitted by the Patents Act or Regulations, a statutory declaration is not necessary - a declaration under the Patents Act 1990 and reg 22.13 of the Patents Regulations 1991 is sufficient. A declaration under the Patents legislation must be in the approved form (available on the IP Australia website).

Where a declaration is to be filed for the purposes of an opposition or other proceeding (e.g. under sections 32 and 36), it must be filed electronically via the approved means for that purpose (see 7.4.4 Filing Opposition Documents). If filed for other purposes, a declaration or statutory declaration may be given to the Commissioner in electronic form via the eServices portal.

What is the difference between a Statutory Declaration and a Declaration under the Patents legislation?

A statutory declaration under the Statutory Declarations Act 1959 is a written statement declared before, and witnessed by, a person specified in that Act. The penalties for a false statement in a statutory declaration include a fine or incarceration.

In comparison, a declaration under the Patents legislation does not need to be witnessed and the penalties for a person making a false statement under the Statutory Declarations Act do not apply. Nevertheless the consequences of making a false declaration may be serious including the potential for any decision obtained on the basis of the evidence to be found invalid.

The approved form for a Declaration under the Patents legislation

A declaration under the Patents Act and regulation 22.13 must:

a. be headed with the title of the matter for which the declaration is made; and

b. be expressed in the first person; and

c. state the name and address of the person making the declaration; and

d. state the date on which, and the place at which, the declaration is made; and

e. be divided into paragraphs, each of which must be:

i. numbered consecutively; and

ii. as far as practicable, confined to 1 subject; and

f. be signed by the person making the declaration; and

g. state that the person believes the declaration to be true and correct.

If the declaration is made for the purposes of a business whose details are set out in the declaration, it must also state:

a. the office or position in the business held by the person who makes the declaration; and

b. the address of the place at which the business is conducted or principally conducted.

It is no longer a requirement that a declaration must be made before another person. A declaration under the Patents legislation may also be given in an electronic form by means of an electronic communication: see section 11 of the Electronic Transactions Act 1999.

Declaration forms that are in the approved form are provided on the IP Australia website (See also the official notice dated 21 June 2012 for further detail).

Declarations not properly presented

Where evidence is not properly presented, a hearing officer may rule (e.g. at the hearing, or subsequently in a decision) that the material concerned is not admissible. Alternatively, they might admit the evidence if it might be probative but weigh it accordingly. (For more information see 7.5.2 Admissibility of Evidence)

Occasionally declarations filed in evidence may incorrectly identify one or other of the parties, and in such cases the declaration is effective provided the Commissioner can determine the purpose of the declaration. Regard should also be had to the actions of the other party on receipt of that evidence, which may be indicative of whether or not that other party has been disadvantaged by the error. (See Porter v Arbortech Investments [1994] APO 55 at page 11)