7.1 Role and Powers of the Commissioner in Hearings

Also in this Chapter:

• ​​​​​​​7.2 Oppositions, Disputes and other proceedings-Procedural summaries
• 7.3 Directions

• 7.4 Opposition Documents, Requirements and Amendments

• 7.5 Evidence
• 7.6 Production of Documents, Summonsing Witnesses
• 7.7 Withdrawal and Dismissal of Oppositions
• 7.8 Hearings and Decisions
• 7.9 Costs
• 7.10 The Register of Patents
• 7.11 Extensions of Time and Restoration of Priority
• 7.12 Extensions of Term of Standard Patents Relating to Pharmaceutical Substances
• 7.13 Orders for Inspection of non OPI Documents
• 7.14 Appeals AAT, ADJR, The Courts
• 7.15 Computerised Decisions

Key Legislation

Patents Act:

• s210 Commissioner's powers ​​​​​​​​​​​​​​

Patents Regulations:

• reg 22.22(2) Exercise of discretionary powers by Commissioner

Overview

The Commissioner performs the function of an administrative tribunal and therefore exercises an administrative rather than a judicial role in matters arising from the administration of the Act (see the Queen v Quinn: Ex-Parte Consolidated Food Corporation 1A IPR 537). The proceedings are less formal than in a court and the Commissioner’s primary concern is that all parties concerned have adequate opportunity to present their case to the Commissioner’s delegate.

Regulation 22.22 outlines the Commissioner’s powers in relation to a hearing. The hearing officer, as the Commissioner’s delegate, assumes full authority over the proceedings. In exercising the discretion under subregulation 22.22(2), the Commissioner is not bound by the strict rules of evidence, as are the courts. In the words of Lord Denning MR in T.A. Miller Ltd v The Minister for Housing and Local Government, [1969] RPC 91 at 93:

“A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. … Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law,…. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it …”

Certain powers of the Commissioner under section 210 are relevant to hearing procedures. Under this section the Commissioner may, for the purposes of the Act:

• summon witnesses;
• receive written or oral evidence on oath or affirmation;
• require the production of documents or articles; and
• award costs against a party to proceedings before the Commissioner.