3.6.6 Sanctions for Non-Compliance

Date Published

Note: This information applies to powers exercised by the Commissioner under Section 210, on or after 15 April 2013.

Under section 210A the Commissioner may take a number of actions where a person does not comply with a summons or notice to produce without reasonable excuse and the Commissioner is satisfied on the balance of probabilities that it is appropriate in the circumstances to take the action.  These include:

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

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

c. actions of a kind that are prescribed by the regulations.

Currently no further actions are prescribed in the regulations.  Normally if the Commissioner is satisfied that an action is appropriate it will be the drawing of an unfavourable inference, for example that a document not produced supports the case made against the party failing to comply.  In the case of a declarant refusing to comply with a summons for cross-examination on their evidence-in-chief, the inference may amount to a finding that their evidence cannot be relied on in support of the party that adduced it.

Refusal to grant a patent is also an available sanction where an applicant fails to comply with a summons or requirement to produce.  It is not intended that a patent be granted on the basis that information, which is of substantial relevance to the validity of a patent, is unreasonably withheld by the applicant.

It should be noted that the sanction provided by the Act directly affects only the parties to the proceedings and not any other person to whom the summons or notice has been directed. In these circumstances the Commissioner will be reluctant to draw an adverse inference if evidence is provided showing that, despite requests by the relevant party for the person to comply, that person was uncooperative for reasons unrelated to the veracity of their evidence.