2.26.4.7 Implied Delegations

Date Published

Staff should ensure that they only exercise the powers that they have been delegated and do not process actions unless the appropriate delegations have been exercised.

Where an action that requires the exercise of a delegation has occurred without there being any record of the exercise of the relevant power by either the Commissioner or a delegate, the matter is to be referred to either the Assistant General Manager (OEP) or Supervising Examiner (Patent Oppositions) for assessment of whether there has been an implied delegation or exercise of the Commissioner's powers, or an ultra vires action.

Most delegations are exercised within PAMS, which retains a record of the exercise of the delegation.  In a small number of situations, delegations are exercised by signing paper forms.  Where a paper form is on file, but there has been an omission to sign the form, it must be determined if there has been an implied exercise of power.  A case note should be added to the file by an acceptance delegate to indicate what has happened and whether the action should be taken to have happened. The note should also indicate whether the action would have been allowed at the present date, if that had been required. The original form must never be signed and back dated. If the action was ultra vires, an Assistant General Manager will annotate the file accordingly.

For example, in a case where an amendment to insert an extra inventor on the patent request was processed without a formal acceptance of the amendment, the amendment was considered to have been properly made and the file was annotated to record this fact.

When deciding whether there has been an implied delegation, the Assistant General Manager (OEP) will consider all circumstances, including whether subsequent matters proceeded on the assumption that the power had been properly exercised, whether the action is in accordance with the legislative regime and the time that has elapsed since the action was done.

The applicant should be advised by letter of what has occurred and what has been recorded on the file to remedy the situation.