2.24.5 Dealing with Lapsed, Withdrawn, Refused, Revoked, Ceased and Expired Cases

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The power of the Commissioner to deal with an application/patent that has lapsed, ceased or expired, or been withdrawn, refused or revoked, depends on whether there is still an application or patent in existence.  The following provides general guidance on how to approach such matters.

Note: Where it is uncertain whether the Commissioner has the power to carry out an action on an application/patent which is lapsed/withdrawn/refused/revoked/ceased/expired, the matter should be discussed with Patent Oppositions.


Where an application has lapsed or is withdrawn, it is no longer subsisting (see Esso Research & Engineering Co v Commissioner of Patents [1960] HCA 31).  The Commissioner has no power to take action on an application that does not subsist (unless the Act clearly indicates a contrary intention).  Consequently, the Commissioner cannot amend an application that has lapsed.  

However, a lapsed application can be restored under sec 223, as this is clearly the intention of this section.  Consequently, an applicant who wishes to amend (or otherwise deal with) a lapsed application must first restore the application before any other action can be considered.

Actions under sec 36 can also proceed in relation to lapsed or withdrawn applications, since this is explicitly permitted by sec 36(2).


Similar considerations apply where an application/patent is refused or revoked.  An application/patent that has been refused or revoked is properly regarded as not subsisting and consequently the Commissioner cannot perform any actions on the application/patent (see Kyowa’s Application [1969] FSR 183).

However, where there is an appeal against a decision to refuse or revoke, the refusal or revocation is effectively put on hold until the appeal is decided.  Consequently, the application/patent continues to subsist until the appeal is resolved.


Where a patent has ceased or expired it is no longer in force.  It is not the case that the patent does not subsist, as the patentee has the right to bring an action for infringements that occurred while the patent was in force.  As the patent continues to subsist, the Commissioner can carry out actions such as amending the patent or recording an assignment of the patent.