2.26.2 Conflict of Interest

Date Published

The APS Values require examiners to deliver services impartially. Where examiners have a conflict of interest in relation to a specific case, there could be a perception that the service has not been delivered impartially.

In situations where examiners believe they have a conflict of interest, they should bring the case to the attention of a supervising examiner. If a conflict exists, the supervising examiner will allocate the case to another examiner who does not have a conflict. Similarly, supervising examiners or senior examiners should not supervise a case where they have a conflict of interest.

Conflict of interest can also arise as indicated below. Other situations should be brought to the attention of a supervising examiner.

Financial Interest as a Shareholder in a Company That is an Applicant for a Patent

Examiners should not examine an application if they hold shares in a company that is an applicant, since this may be perceived as improperly favouring the applicant. Similarly, where examiners are aware of a direct shareholding by a close family member, they should also abstain from examining the case.

An indirect financial interest, such as by membership of a superannuation fund that owns shares in a company, would not normally represent a conflict of interest.

Prior Involvement With the Applicant

Prior involvement with an applicant (or if there are reasons to believe a third party will oppose the application, with that third party) may raise concerns regarding a lack of impartiality. Examples are if the applicant is a friend, family member, colleague, recent former employee or, of course, the examiner themself. Consequently, in these situations examiners should not examine the case.

Where examiners were previously a customer of the applicant, that prior involvement does not represent a conflict of interest.

Prior Involvement With the Case

Issuing an adverse report on an application (or on a parent of an application) does not represent a conflict of interest.


Examiners have knowledge of the legal and technical matters relevant to the examination of cases within their technology. This is an essential prerequisite to examination and is not a prejudgement of the case or any issues that may be raised. However, examiners must be prepared to consider arguments presented by applicants in relation to their specific case.

Rule of Necessity

Where the only examiner competent (on technical grounds) to examine an application is barred because of a conflict of interest, the matter should be referred to an Assistant General Manager to decide whether necessity requires that the case be examined in spite of the conflict.

Case Law

The rules that govern bias of judges do not apply as strictly to administrators. However, some guidance may be drawn from the following cases:

  • Dimes v Grand Junction Canal Co Proprietors [1852] 3 HLC 759;
  • Dickason v Edwards (1910) 10 CLR 243;
  • R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546;

  • Cleworth v Barrow (1978) 20 ALR 359;
  • Builders' Registration Board of Qld v Rauber (1983) 47 ALR 55; and
  • Dovade Pty Ltd v Westpac Banking Group [1999] NSWCA 113.