Consent of Exclusive Licensee or Mortgagee Required

Date Published


A registered mortgagee or exclusive licensee must consent in writing to an amendment of the complete specification of a patent, otherwise the amendment is not allowable (sec 103). The consent may be part of the request to amend, or may be a separate document filed at the time of the request or at a later date. Section 213, which allows certain documents to be signed by a patent attorney, does not apply to such consents. It should be noted that a consent is not required in the case of a non-exclusive licensee.

A consent is also not required in the case of licences or mortgages that have not (or not yet) been registered. If a consent is received from a person alleging entitlement to the patent, and that entitlement has not been entered on the Register, the alleged consent may be ignored and need not be referred to in a report on the request to amend.

Checking for Exclusive Licensee or Mortgagee

At every report stage on a request to amend the specification of a patent, examiners are to check the Register for any registered mortgagee or exclusive licensee.

A check for whether there is a registered mortgagee or exclusive licensee can be done by following the procedure outlined in 5.13.6 How to Check for a Mortgagee or Exclusive Licensee.

Examination Practice

Where examiners are aware that a consent is required, but has not been given, the amendment request should nevertheless be examined and a report issued. The report should include, in addition to any adverse comments regarding allowability, a statement that leave to amend will not be granted unless either a consent, in writing, to the amendment is supplied, or a direction by the Commissioner under sec 103(2) to dispense with such a consent is given.

Before allowing amendments to a patent, examiners should confirm whether a consent is required.  There may be, for example, situations where an exclusive licence or mortgage is registered after leave has been granted and before allowance of the amendments, in which case a consent from the registered party is required before the amendments can be allowed.

Where a consent has been filed, it is to be taken as extending to the amendment request, unless further amendments filed subsequent to the consent substantially change the overall nature of the amendments. If the latter occurs, an additional consent will be required and is to be requested by examiners.